1998 Journal of Supreme Court History, Vol I

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PUBLICA nONS CO.MJvITITEE E. BarrettPrettyman,Jr. Chairman Donald B. Ayer LouisR.Cohen Charles Cooper

Kenneth S. Geller James J. Kilpatrick Melvin I. Urofsky

BOARD OF EDITORS Melvin I. Urofsky, Chairman

HermanBelz Craig Joyce David O'Brien DavidJ. Bodenhamer Laura Kalman Michael Parrish KermitHaU MaevaMarcus Philippa Strum

MANAGING EDITOR

Clare Cushman

CONSULTING EDITORS

Kathleen Shurtleff Patricia R. Evans JamesJ.Kilpatrick

Jennifer M. Lowe David T. Pride Supreme Court Historical Society

Board of Trustees

Honorary Chairman William H. Rehnquist

Honorary Trustees Harry A. Blackmun LewisF. Powell, Je Byron R. White

Chairman President Dwight D.Oppel1Uan Leon Silvel1Uan Vice Presidents Vincente. Burke, Jr. Frank e. Jones Dorothy Tapper Goldman E. Barrett Prettyman, Jr.

Secretary Treasurer Virginia Warren Daly Sheldon S. Cohen

Trustees

George R. Adams Kenneth S. Geller Stephen W. Nealon Victor Battaglia FrankB.Gilhert Gordon O. Pehrson Hel1UanBelz John D. Gordan, III Leon Polsky Barbara A. Black William T. Gossett Charles B. Renfrew HugoL. Black,Jr. Geoffreye. Hazard. Je. WilliamBradfordReynolds Vera Brown Judith Richards Hope John R. Risher, Jr. Wade Burger Ruth Insel Harvey Rishikof Patricia Dwinnell Butler William E. Jackson Will iam P. Rogers Benjamin R. Civiletti Robb M. Jones Jonathan e. Rose Andrew M. Coats James 1. Kilpatrick Jerold S. Solovy William T. Coleman, Jr. Peter A. Knowles Kenneth Starr F. Elwood Davis Philip Allen Lacovara Cathleen Douglas Stone George Didden III Jerome B. Libin Agnes N. Williams Charlton Dietz Maureen E. Mahoney Lively Wilson John T. Dolan Howard T. Markey Jamese.Duff Mrs. Thurgood Marshall RobertE.Juceam William Edlund Thurgood Marshall, Jr. General Counsel Johne.Elam VincentL. McKusick JamesD.Ellis Francis J. McNamara) r. David T. Pride Thomas W. Evans Joseph R. Moderow Executive Director Wayne Fisher James W. Morris, Jf. Kathleen Shurtleff Charles O. Galvin John M. Nannes Assistant Director

11 General Statement

The Supreme Court Historical Society is a pri vate non-profit organization, incorporated in the District of Columbia in 1974. The Society is dedicated to the collection and preservation of the history of the Supreme Court of the United States. The Society seeks to accomplish its mission by supporting historical research, collecting antiques and artifacts relating to the Court's history, and publishing books and other materials which increase public awareness ofthe Court's contribution to our nation's rich constitutional heritage. Since 1975, the Society has been publishing a Quarterly newsletter, distributed to its membership, which contains short historical pieces on the Court and articles detailing the Society's programs and activities. In 1976, the Society began publishing an annual collection of scholarly articles on the Court's history entitled the Yearbook, which was renamed the Journal of Supreme Court History in 1990 and became a semi-annual publication in 1996. The Society initiated the Documentary History of the Supreme Court of the United States, 1789-1800 in 1977 with a matching grant from the National Historical Publications and Records Commission (NHPRC). The Supreme Court became a cosponsor in 1979. Since that time the project has completed five of its expected eight volumes, with a sixth volume to be published in 1998. The Society also copublishes EqualJustice Under Law,a 165-page illustrated history of the Court, in cooperation with the National Geographic Society. In 1986 the Society cosponsored the 300-pageIUustrated Historyofthe Supreme Court of the United States. Itsponsored the publ ication ofthe United States Supreme Court Index to Opinions in 1981, and funded a ten-year update of that volume that was published in 1994. The Society has also developed a collection of illustrated biographies of the Supreme Court Justices which was published in cooperation with Congressional Quarterly, Inc., in 1993. This 588 page book includes biographies of all 108 Supreme Court Justices and features numerous rare photographs and other illustrations. Now in its second edition, it is titled The Supreme Court Justices: Illustrated Biographies, 1789-1995. In addition to its research/publications projects, the Society is now cooperating with the Federal Judicial Centerona pilotoral history project on the Supreme Court. The Society is also conducting an active acquisitions program which has contributed substantially to the completion of the Court' s permanentcoUection of busts and portraits, as well as period furnishings, private papers and other artifacts and memorabilia relating to the Court's history. These materials are incorporated into displays prepared by the Court Curator's Office for the benefit of the Court's one million annual visitors. The Society also funds outside research, awards cash prizes to promote scholarship on the Court and sponsors or cosponsors various lecture series and other educational colloquia to further public understanding of the Court and its history. The Society ends fiscal year 1998 with approximately 5,467 members whose financial support and volunteer participation in the Society's standing and ad hoc committees enables the organization to function. These committees report to an elected Board of Trustees and an Executive Committee, the latter of which is principally responsible for policy decisions and for supervising the Society'S permanent staff. Requests for additional information should be directed to the Society's headquarters at III Second Street, N .E., Washington, D.C. 20002, Tel. (202) 543-0400.

The Society has been detennined el igible to receive tax deductible gifts under Section 50 1 (c) (3) under the Internal Revenue Code.

ill Joumal of Supreme Court History 1998, Vol. I

page

Introduction Melvin 1. Urofsky

Articles

Chief Justice John Marshall (I 80 1- 1835) Herbert A. Johnson 3

Out of the Shadow: Roger Brooke Taney as Chief Justice James B. 0 'Hara 21

MelviUe W. Fuller Reconsidered James W Ely, Jr. 35

Judicial Management and Judicial Disinterest: The Achievements and Perils of Chief Justice William Howard Taft Robert Post 50

The Hughes Comt and Constitutional Consultation Barry Cushman 79

Chief Justice Earl Warren: Super Chiefin Action Bernard Schwartz 112

Hail to the Chief: A Bibliographical Essay on Six Chief Justices of the United States 133 John B. Taylor

166 Contributors 167 Photo Credits

Copyright 1998, by The Supreme Court Historical Society I J I Second Street, N.E. Washington, D.C., 20002 ISBN 0-914785- 16-8 Introduction Melvin I. Urofsky Chairman, Board of Editors

Despite complaints from scholars (includ­ much, the tone of the Court as a whole is greatly ing myself) that periodizing Supreme Court his­ affected by the skills of the Chief. The Court tory by the tenures of Chief Justices is histori­ that Earl Warren welded together to hand down cally inaccurate, scholars (including myself) a unanimous decision in the segregation cases continue to do that. We know that there are consisted of the same people who had frac­ problems. Sometimes Associate Justices, such tured the Bench in the preceding decade. as Holmes, Brandeis, Black, Frankfurter, and In addition, just as we see the President as Brennan are more important in determining the the head and the embodiment of the executive Court's direction than the multiple Chiefs un­ branch, so we see the Chief Justice as the head der which they serve. Black and Douglas, for and embodiment of the judicial branch. The example, began their careers on the Court un­ Consitution gives the Chief two roles, one as der Hughes, and outlasted Stone, Vinson and leader of a particular court, and the other as Warren, finally retiring under Burger. Moreover, "Chief Justice of the United States," leader of the Chief has only one vote out of nine, and the judiciary. U.S. Reports is full of decisions in which the In the essays in this volume we see how Chief Justice is in the minority. six of the men who have sat in the center chair Why, then, do we look so much at the man have shaped the judicial history of this coun­ in the center chair when we study the history try. For those whose appetites are whetted by of the Court? One reason is that while the these essays, John Taylor provides an exten­ Chief Justice may have only one vote, he is, at sive bibliography by which to pursue further the least, "primus inter pares"-first among readings. equals, and a strong Chief Justice can and will John Marshall's story may be the most fa­ lead the Court. There is a big difference be­ miliar, but as Herbert Johnson shows, it is one tween the behavior of the Court under strong always worth retelling, to remind ourselves Chiefs such as Taft, Hughes and Warren, and how great men have influenced our history. weak Chiefs such as Stone and Vinson. Even Roger Brook Taney is remembered chiefly as when the make-up of the side judges, as author of the infamous Dred Scott decision, Holmes called them, does not change very but his lengthy career on the Bench left the nation a legacy in some ways second only to Devise volume of the Taft Court, shows how that of Marshall in establishing the judiciary the former President reshaped the role of Chief as a co-equal branch of the government. Justice to become chief administrator of the James O'Hara argues that Taney's reputa­ court system, and in doing so greatly strength­ tion has been unfairly tarnished by that one ened the federal jUdiciary. Cushman is one of decision, and offers a different light on evalu­ the leading revisionist historians about the ating Taney. Court crisis of the 1930s, and in this essay he Melville W. Fuller is not a name that leaps suggests that Hughes, rather than being an to our lips, and even students of the Court enemy of the New Deal, tried to show the ad­ may be hard-pressed to say much about him. ministration how its controversial program James W. Ely, Jr., however, believes that Fuller could pass constitutional muster. acted in the finest traditions of his predeces­ Finally, we note with sorrow that the essay sors in leading the Court through a period of by Bernard Schwartz will be the last by the rapid economic, social, and political change in one-time dean of American constitutional his­ this country. tory. Shortly after delivering this lecture on Two of the essays that may prove most Earl Warren, or the "Super Chief'-a phrase enlightening to longtime devotees of Court his­ that Schwartz popularized, the Tulsa Law tory are those by Robert Post and Barry School professor was hit by a car and died De­ Cushman. Post, who is writing the Holmes cember 23 , 1997. We shall miss him greatly. Chief Justice John Marshall (1801-1835)

Herbert A. Johnson*

The Supreme Court Historical Society is to John Marshall's Significance be complimented upon its decision to focus upon the changing place of the Chief Justice of Few of us have not spent some time study­ the United States throughout history. Both the ing the contributions of Chief Justice John legal profession and society in general, have Marshall to American constitutional law. How­ become very presentist in their perceptions, and ever, on this occasion it will help to put matters all of us tend to forget that today's Supreme in perspective by way of a brief review. In Court just "ain't what it used to be ." This is Marbury v. Madison, Marshall brought judi­ not to make a value judgment concerning ei­ cial review into the Supreme Court's case law, ther past or present membership of the Court. adopting the rationale of Federalist Number Quite the contrary, our focus must be on the 78, and following the lead of a number of state evolution of what for many of us is the most tribunals and lower federal courts. I Marbury's important branch of our federal government­ importance lies not in its originality, but rather the Supreme Court of the United States and the in its establishment of the Supreme Court as constitutionally denominated "inferior courts" the primary instrument for constitutional inter­ established by Congress in accordance with pretation within the United States. In Fletcher Article III of the Constitution. It is within that v. Peck and Dartmouth College, the Chief Jus­ framework that we are asked to take a close tice provided an expansive interpretation of the look at a group of Chief Justices who have Contract Clause necessary to the Supreme played a significant role in shaping the Court Court's task of invalidating state economic regu­ into the institution of today. lation subversive of private property rights. In 4 JOURNAL 1998, Vol. I conjunction with other cases, Fletcher and appeal brought against the state, which claimed Dartmouth College encouraged American eco­ the protection of the Eleventh Amendment. nomic development by providing federal guar­ Marshall rejected this assertion of immunity antees to both foreign and domestic investors.2 from appellate review by the Supreme Court of Free trade among the American states still rests the United States. In doing so, he held that in upon Chief Justice Marshall's encyclopedic situations where jurisdiction is based upon a decision in Gibbons v. Ogden, which killed the federal question as well as upon the status of dragon of state mercantilism and opened the the parties, the primary authority for Supreme channels of commerce throughout the Union.3 Court jurisdiction is found in the fact that the These economic decisions have not gone with­ case raises issues concerning the Constitution, out criticism,4 but they were critical to the sur­ statutes, or treaties of the United States. Thus vival ofwhat we today would call a "third world Cohens was an important assertion of Supreme nation," shaken by political disunity and threat­ Court jurisdiction that clarified some of the ened by economic chaos. ambiguities inherent in the provisions of the The cornerstone in Marshall's constitu­ Eleventh Amendment." tional arch was McCulloch v. Maryland, the Unquestionably, these are noteworthy ac­ case that upheld the constitutionality of the complishments. Standing alone, they qualify Second Bank of the United States and defended Marshall for the title of "The Great Chief Jus­ it from a Maryland state tax imposed upon its tice." Yet, I have come to the conclusion that bank note issue. Following a careful catalog­ Marshall's greatness is to be measured more ing of the concepts of enumerated and impl ied by his contributions to the institutional devel­ powers, the Chief Justice read into law a broad, opment of the Court than to his undeniable ac­ or loose, construction of the Necessary and complishments in constitutional law. The Proper Clause. McCulloch provided a sound former tend to be overlooked, simply because constitutional basis upon which to exempt fed­ they are less accessible for study, and because eral governmental activity from state interfer­ the evidence tends to be more obscure. We ence. Finally, it recognized that taxing power need to spend more time studying Chief Jus­ was concurrent in both the federal and state tice Marshall's leadership. This requires close governments, and began the tedious process attention to how he and the Associate Justices of delineating what state taxes might legitimately related to each other. We also have to examine be imposed on federal operations.s the lasting changes Chief Justice Marshall made To this catalog of Marshall's constitutional to the management of the Court, and to the law decisions we must add those important shaping of its traditions. opinions that defined the Supreme Court's risdiction. Principal among these was Cohens Supreme Court Justices in the v. Virginia, which was a criminal prosecution in Circuit Courts Virginia, based upon the defendants' sale of a District of Columbia lottery ticket. In their de­ The most striking difference between John fense, the Cohens brothers argued that since Marshall's Supreme Court and the Court of to­ the lottery was established by Congressional day is that he and his colleagues rode circuit. statute, it was supreme over state criminal law. Indeed, the Justices continued to do so until Ultimately, the Court held that the District of the enactment of the Evarts Act in 1891, which Columbia lottery was a local matter, and that left only one vestige of that assignment-the Congress had not intended the statute to ap­ practice of assigning surveillance of some cir­ ply throughout the United States. Thus Chief cuit business to a Supreme Court Justice des­ Justice Marshall was able to deny relief to the ignated to monitor that circuit. 7 In John defendants, and avoid confrontation with the Marshall's day, riding the circuit meant being a Virginia authorities. However, the key decision trial judge for most of the year, and moving in the case was the Supreme Court's accep­ among the state capitols and some other major tance of jurisdiction. Virginia had argued that cities hearing cases in the principal federal trial the Supreme Court lacked authority to hear an courts. B JOHN MARSHALL 5

Although the District Court judge sat with tices at the cutting edge of evolving federal ju­ the Supreme Court Justice and presided jointly dicial power. There are advantages and disad­ over the Circuit Court, it was the Supreme Court vantages in occupying that role--depending on Justice who delivered virtually all of the opin­ whether one is the cutter or the cuttee. In a ions and who was responsible for the business positive sense, traveling throughout the nation of the Circuit Court. The need for knowledge brought the Justices into contact with the prob­ of state procedures, imposed by the Process lems and legal issues of the various states and Act of 1789, required study and experience on regions. With a small executive branch mainly the part of the Supreme Court Justice.9 To a represented locally by customs and revenue degree, the practice of assigning a Supreme officers, the Supreme Court Justices on circuit Court Justice to a circuit where he had experi­ were the highest ranking federal officials ence in one of its states helped the Justices readily accessible to the people. Although the better perform their duties. However, no extent Marshall Court wisely refrained from the ear­ of law practice or time on a state court bench lier practice of delivering partisan grand jury was fully adequate preparation for dealing with charges, its Justices nevertheless continued to the variety of issues raised in the Circuit Courts. be very visible embodiments offederal author­ Chief Justice Marshall, for example, had virtu­ ity in every state of the Union. ally no familiarity with admiralty law before he However, public accessibility cut both ways, was confirmed as Chief Justice. His judicial as Chief Justice Marshall discovered when correspondence shows that in matters of mari­ President Thomas Jefferson maneuvered him time law he sought the advice of Justice Jo­ into being the trial judge for former Vice Presi­ seph Story or Justice Bushrod Washington, dent Aaron Burr. ll We shall probably never both of whom handled large admiralty dockets know exactly what Burr planned to do in the in their respective circuits. 10 Midwest between 1805 and 1807, but it was Riding the circuits put Supreme Court Jus- John Marshall's ruling on the constitutional

At issue in Cohens v. Virginia (1821), the landmark Marshall decision ruling that tbe Supreme Court had the authority of appellate review, was the criminal prosecution in Virginia of tbe Cohens brothers for selling a lottery ticket in the District of Columbia. In tbeir defense, the Cohens argued that since the lottery was established by Congressional statute, it was supreme over state criminal law. The illustration above sbows the drawing of prizes at a Baltimore lottery. 6 JOURNAL 1998, Vol. I

definition of treason that protected Burr from cases heard on appeal by the Supreme Court. 17 Jefferson's prosecutors. For our purposes, the However, disappointed litigants faced the pros­ case illustrates how a highly politicized trial pect that the Supreme Court Justice who had can generate strong criticism of a trial judge tried the case would also write the Court's opin­ and inflict great stress. Chief Justice Marshall ion on appeaL That rarely happened, but the began the proceedings with the clear recogni­ possibility must have had a depressing impact tion that he would be subject to close scrutiny upon the appellate caseload. Marshall and by the Jeffersonians and the public press. His William Johnson never reviewed their own fears proved well-founded. 12 On the other hand, cases on appeal; Smith Thompson and it was mere chance that he attended one of his Bushrod Washington affirmed themselves usual "lawyers' dinners," at which he found twice. Story and John McLean affinned their the defendant enjoying both his release on bail own Circuit Court decisions four times, and it is and a good meal. The Jeffersonian press Story's affirmance that hammers home the squealed in delight as it detailed the Chief's appellant's dilenmla: purported fraternization with the accused, and Marshall was hung in effigy in Baltimore. 13 The grounds upon which a decree of There were obvious dangers in riding the cir­ condemnation was pronounced in the cuit. Circuit Court fully appear in the opinion The Burr trial's historical prominence dra­ of that court which accompanies this matically illustrates the threat to health and well record. That opinion has been submit­ being that Supreme Court Justices faced on cir­ ted to my brethren, and a majority of cuit. Later in the Court's history, Justice them concur.... Stephen J. Field became embroiled in a danger­ ous encounter with a disgruntled and armed Just to make sure the point was well taken, the litigant. To Field's good fortune, the would-be Supreme Court reporter reprinted the Circuit assailant met his death at the hand of a United Court opinion by Justice Story,I8 States marshal assigned to protect him.14 Less Chief Justice Marshall was sensitive to the well-known is the sad case of Marshall's pre­ disruptive effect that appeals from Circuit Courts decessor on the Supreme Court Bench, Justice could have upon Supreme Court collegiality. James Iredell of North Carolina. As a South­ Justice Story and Justice Johnson presided over ern-born Justice, Iredell drew the unenviable many admiralty trials, and they disagreed on task of riding the 1,900 mile Southern circuit­ admiralty jurisdiction in contract matters. Their which covered Georgia as well as North and professional conflicts and personality clashes South Carolina. Despite Iredell's successful often inflamed tempers among the Justices. lobbying for Congress to direct a statutory ro­ Marshall wisely went out of his way to dis­ tation of Southern circuit duties, he rode the courage these confrontations. When a Story long circuit five times before his death, which or Johnson Circuit Court admiralty case was on occurred just two weeks after his forty-eighth appeal, Marshall never assigned authorship of birthday. IS the reviewing opinion to the other warring Jus­ Supreme Court Justices gained some pro­ tice. Instead, he delegated the task to a neutral cedural advantages from riding the circuit. One admiralty expert, usually Justice Washington of these was the ability to refer difficult ques­ or Justice Brockholst Livingston. 19 tions to the Supreme Court, in cases where they When Supreme Court Justices rode the cir­ and the District Court judge disagreed. Thus, cuits they worked closely with the federal Dis­ it was possible to hasten the adjudication of trict Judges, and gained not only the technical legal conflicts that might not otherwise have support. they needed in local procedure but also been appealed by the parties. 16 a close acquaintance with judges in the lower The other advantage of Circuit Court du­ federal courts. As a consequence, the Supreme ties may have been that it reduced the size of Court collectively knew both the problems that the Supreme Court's appellate docket. The fed­ affected the lower federal courts and the com­ eral Circuit Courts were the largest source of petence and personality of the judges who JOHN MARSHALL 7

staffed those tribunals. There was no need for was under heavy political attack. This may an Administrative Office of United States Courts have been of particular comfort to Justices Wil­ in John Marshall's day! Furthennore, the pres­ liam Paterson and Samuel Chase, both of whom ence of the Justices in the Circuit Courts helped had been overbearing in presiding over pros­ to unify the federal judiciary and to reenforce ecutions of Jeffersonian newspaper editors and the independence of lower federal court judges accused insurgents indicted in connection with who otherwise might have been isolated by the Fries and Whiskey Rebellions.23 their office and judicial activity. On the other hand, gaining support for a majority opinion demanded then, as it still does, Tbe Authorship and DeUvery of the compromise of differences among the Supreme Court Opinions Court members. During the Marshall years, the best documented record of such a com­ One of the most notable changes in Su­ promise concerned New York state's insol­ preme Court procedure implemented by John vency laws enacted when there was no fed­ Marshall was the issuance of an opinion of the eral bankruptcy legislation. Sturges v. Court rather than allowing the delivery of se­ Crowninshield, decided in 1819, involved riatim opinions. Chief Justice Oliver Ellsworth the New York state insolvency statute, which may have started this process by using brief was found to be retrospective in its operation per curiam opinions to dispose of less signifi­ and thus violative of the federal Constitution's cant cases on the Supreme Court's docket. How­ impainnent of Contract Clause.24 Eight years ever, it was Marshall who established the uni­ later, in his separate opinion in Ogden v. tary opinion of the Court, and then apparently Saunders, 25 Justice Johnson explained the asserted his personal right to deliver the opin­ "compromise" by which the Court arrived at a ions whenever he was present on the Bench. judgment in Sturges. He wrote: Marshall's preeminence in opinion delivery may well have been based upon his seniority by The court was, ... greatly divided .. . virtue of being Chief Justice. This entitled him and the judgment partakes as much of a to preside at Court sessions, and either by tra­ compromise, as of a legal adjudication. dition or through the acquiescence of his eld­ The minority thought it better to yield erly colleagues, he was the Justice who spoke something than risk the whole. And, al­ on behalf ofthe Supreme Court.20 though their course of reasoning led Chief Justice Marshall's predominance in them to the general maintenance of the opinion delivery continued for about ten years State power over the subject, controlled after he became Chief Justice. After that, the and limited alone by the oath adminis­ arrival of Justice Story, and a spate of dissents tered to all their public functionaries to conceming War of 1812 prize cases, broke the maintain the constitution of the United pattem. By the end of his chief justiceship, States, yet, as denying the power to act Marshall delivered about one-third ofthe Court upon anterior contracts could do no opinions issued. Although manuscript evi­ hann, but, in fact, imposed a restriction dence is not available to document my belief, I conceived in the true spirit of the con­ suspect that Marshall authored most, if not all, stitution, they were satisfied to acqui­ of the opinions that he delivered on behalf of esce in it, provided the decision were the Court.22 so guarded as to secure the power over Unitary opinions of the Court were a vital posterior contracts, as well from the part of the Supreme Court's rise to prominence positive tenns of the adjudication, as in the public eye. Most significantly, they meant from inferences deducible from the rea­ that the Supreme Court spoke as a unit in re­ soning of the court.26 gard to most ofthe vital constitutional law de­ cisions of the Marshall era. In addition, the The Sturges disposition would suggest ex­ Court opinions gave a modicum of protection traordinary efforts to arrive at a single opinion to individual Justices at a time when the Court of the Court, even though it obscured views 8 JOURNAL 1998, Vol. I

ins veney was found to be retrospective in its operation and thos violative of the federal Constitution's impair­ ment of Contract Clause, The statute had been enacted befor e the passage of federal bankruptcy legislation. Pictured is a 1789 illustration of a debtor's prison on Water Street, where insolvent New Yorkers were sometimes incarcerated.

strongly held by the Justices. Although Jus­ be helpful to recall, if only briefly, the circum­ tice Johnson does not name the Chief Justice stances under which Marshall took office as as the architect ofthis compromise, there would Chief Justice of the United States. seem to be little doubt about his role in arriving at the majority decision. Since the Court could The Court and Marshall in 1801 not agree on the more basic issues concerning federal bankruptcy power and property rights Although we have a less than complete pic­ under the Contract Clause, it was best to post­ ture of Chief Justice Marshall, the surviving pone a decision since the retrospective nature bits and pieces of his papers, coupled with a of the New York statute was adequate basis for cautious glance at oft-repeated anecdotes, pro­ a ho Iding of unconstitutional application. 27 As vide some sense of his methods of small group Justice Johnson observed, rather derisively, it leadership. Marshall was emphatically a was a compromise and not a legal judgment. "people person," an individual who kept friends And yet is it not the very nature of opinions of for life, regardless of their political allegiances. the Court that, to be collective, they must be Popular with the voters, he was highly suc­ the product of compromises worked out in Con­ cessful in his youth as a candidate for the Vir­ ference? ginia House ofDelegates . In 1798 he won elec­ Chief Justice Marshall neither dominated tion to the United States House of Representa­ his colleagues nor did he reshape his views to tives in a strongly Jeffersonian-Republican dis­ secure a tactical advantage through writing the trict in and around Richmond. A member of the Court's opinion. The hazardous political situa­ Masonic order, he served as master of his local tion ofthe Court, coupled with Marshall's natu­ lodge and deputy grand master for the Com­ ral genius for interpersonal relations, made him monwealth of Virginia grand lodge. Within his a strong and effective leader at a critical stage family and in-law group, Marshall was known in the history of the Supreme Court 28 It will as the person who would bring strength and JOHN MARSHALL 9 solace when illness or death came to cal1. 29 His retary of State. That period of service from letters to Joseph Story on the death of his June 1800 through the March 1801 inaugura­ colleague's daughter reflect his deep compas­ tion of President Thomas Jefferson, gave sion and empathy with the suffering of a fellow Marshall vastly increased status among mem­ human being. 3D Marshall's friends were both bers of both parties. He provided astute diplo­ numerous and loyal, for the Chief Justice's heart matic leadership in stabilizing relations with was even bigger than his ungainly and large Britain, and was successful iu guiding negotia­ frame. tions with republican France, having persuaded Marshall joined the Supreme Court at a criti­ President Adams to support his moderate cal time in its existence. Under Chief Justices stance in Franco-American relations. Finally, John Jay and Ellsworth, each of the Justices Marshall was the principal Cabinet officer in seem to have operated quite independently. Philadelphia, then the federal Capital, when To a degree, this may well have been due to Adams took increasingly longer vacations in the concentration of business in the Circuit Massachusetts. The overall direction of the Courts, and to the relatively light case load federal government, and the dispensation of of the Supreme Court. The literary manifesta­ patronage, became Marshall's primary respon­ tion of this independencewas the seriatim opin­ sibilities.34 At a time when the Supreme Court ion, which, along with Circuit Court grand jury remained as the sole surviving Federalist charges, exposed each Justice to public scru­ branch of the government, Marshall's stat­ tinyY ure as an astute and successful political A persistent problem with the Supreme leader gave the Justices new confidence and Court in the Jay-Ellsworth era was the rapid esprit. Marshall also brought stability. Dr. turnover of Justices. The Senate's rejection of Charles Hobson, the editor of Marshall's John Rutledge's nomination to be Chief Justice papers, concludes that "caution, prudence, in 1795 was a temporary setback. Both Chief and moderation were the hallmarks of ... Justice Jay and Chief Justice Ellsworth took [Marshall's] leadership. "35 leave ofthe Court to accept diplomatic appoint­ That was a very important change for men ments, and Jay resigned his seat to accept elec­ who faced not only strong political opposition, tion as governor of New York state. The sense but also a sharply diminished status in the eyes of drift, and the lack of "hands-on" leadership, of their countrymen, and indeed, also of them­ may have depressed those left behind to con­ selves. We have already mentioned the highly duct the Supreme Court's business with less inflammatory conduct of Circuit Court trials by than a full Bench. Within the Court that awaited Justices Chase and Paterson, which left them Marshall's arrival, there may well have been a and their Court colleagues in jeopardy of im­ high group expectation for a stronger leader­ peachment. In addition to the impeachment at­ ship style and some protection from the glare tempt, Justice Samuel Chase suffered from two of pubJicity.32 skeletons in his closet: during the American Marshall came to the Supreme Court with Revolution, he was discovered to have specu­ full appreciation of his age differential from his lated in wheat futures based upon his inside colleagues, but he also brought a reputation knowledge as a member of the Continental for astute political sensitivity in the exercise of Congress; and he had campaigned against rati­ both legislative and executive duties. In the fication of the Constitution in Maryland.36 Jus­ last year of John Adams' administration, it was tice Paterson also had reasons beyond the im­ Marshall who had been most influential in the peachment threat to feel insecure. A distribution of patronage to Federalist Party shopkeeper's son, he made good by attending politicians. Marked as a respected Adams Princeton and by being admitted to the bar. His Federalist, Marshall nevertheless had main­ efforts in support of the Revolution gained him tained a reputation for intelligence, coopera­ preeminence in New Jersey politics, but his tion, and pragmatism, among his political ad­ biographer details Paterson's largely futile ef­ versaries in both parties.33 Prior to his appoint­ forts to maintain social contacts with former ment as Chief Justice, Marshall served as Sec- classmates at Princeton. Finally, Paterson had 10 JOURNAL 1998, Vol. I been the leading contender for elevation to the The First Challenge chief justiceship at the time John Marshall was appointed.3? Ironically, the Marshall Court owed a great The other Associate Justices also harbored deal of its internal cohesion to its archenemy, a psychological need for a strong and astute President Jefferson. It was his adamant fight leader as Chief Justice. Justice William Cushing against Marshall and the Supreme Court that, owed his royal judgeship to his father, who re­ more than anything else, made it possible for fused to resign from the Massachusetts Su­ the judiciary to rise to new levels of distinction preme Court until his son was appointed. And and power. As often as the "Great Lama of the Cushing had refused the chiefjusticeship when Mountains" invoked public and political pres­ it was offered to him by President Washington sure against the Court,just as frequently Chief in 1795.38 Justice Alfred Moore delivered only Justice Marshall developed adroit legal maneu­ one opinion in his five years on the Supreme vers to turn the situation into an enhancement Court; his biographer rightly concludes that ofjudicial power under the Constitution. his "career made scarcely a ripple in American The familiar begins with the repeal of judicial history," and that he was overshadowed the Judiciary Act of 1801, and the return ofSu­ by his colleagues.39 Among the Justices await­ preme Court Justices to circuit duties. Since ing Marshall's arrival, only Bushrod Washing­ that statute created additional judgeships that ton possessed both the status and the ability were filled by John Adams' "midnight appoint­ to oppose the new Chief Justice. But he was an ments" of Federalists, it was a prime target for old friend of the Chief's. Indeed, it was John repeal when the new administration took of­ Marshall who in 1798 had refused appointment fice. Other judgeships were created by a less to the Supreme Court and urged President controversial reorganization of courts in the Adams to appoint Justice Washington in his District of Columbia. This act authorized jus­ stead.40 tices of the peace for the federal capital district By way of contrast to the Associate Jus­ and thus formed the background for the tices, newly appointed Chief Justice Marshall Marbury case.42 was a combat veteran of the American Revolu­ With Congress and the White House se­ tion who had the endorsement ofGeorge Wash­ curely within their control, President Jefferson ington in his political career. His friendship and his allies moved. promptly to reverse what with the General's nephew, Justice Washing­ the Federalists had done in the Judiciary Act of ton, already involved him in writing the 180). The independent Circuit Courts were abol­ President's biography. In addition, his perfor­ ished, and the old system of circuit riding by mance as Adams' Secretary of State was both the Supreme Court was reestablished. Through successful and highly commendable. Little an oversight, certain justices of the peace com­ wonder that he easily legitimated his leader­ missions had not been delivered under the Dis­ ship of the Supreme Court and took upon him­ trict of Columbia court act. The new Secretary self the obligation of pronouncing its unified of State, James Madison, refused the appoin­ opinion. Justice Johnson sized up the situa­ tees' demands for these commissions. William tion in 1804 when he joined the Supreme Court Marbury and his fellow would-be justices of upon the death of Justice Moore. He recalled the peace brought an original jurisdiction case that Chief Justice Marshall wrote the Court opin­ in Marshall's Supreme Court, asking that a man­ ions because: damus be issued to compel delivery. To fore­ stall the Court's entertainment of challenges to Cushing was incompetent, Chase could the JudiciaIY Act's repeal, and to delay action not be got to think or write--Patterson on Marbury's petition, the Jeffersonian Con­ [sic] was a slow man and willingly de­ gress canceled the next two Ternls of the Su­ clined the trouble, and the other two preme Court. judges [that is Marshall and Washing­ Of the two issues raised by Congress's ac­ ton] you know are commonly estimated tions, the most significant was whether the J80 J as one judge.41 statute had been repealed in such a way that JOHN MARSHALL 11 the Supreme Court Justices might constitution­ by the doctrine of fundamental constitutional ally resrnne theircircuitduties.43 Given the delay law and the Constitution's supremacy over leg­ imposed upon the Court by act of Congress, islative enactments,judicial review was in gen­ Chief Justice Marshall had more than adequate eral use throughout many state and federal opportunity to write to his colleagues, request­ courtS.48 Marbury simply represents the Su­ ing their advice concerning this matter. All of preme Court's decision to apply the doctrine to the Justices, with the exception of Chase, con­ the question of its own originaljurisdiction. cluded that they should resume their circuit What is unique in the Court's action, and duties, and in deciding Stuart v. Laird the Court hence in Marshall's strategy, was not adoption publicly affirmed that decision.44 In his referral of judicial review, but rather the confluence of letter, Marshall indicated that he would be the Court's acquiescence in circuit duties un­ bound by the majority opinion. When the mat­ der Stuart v. Laird, and its denial of original ter was raised in the Stuart appeal, Justice jurisdiction and assertion of judicial review in Chase acquiesced in the majority view, and Marbury. If not before, certainly thereafter, Marshall recused himself since he had heard Jefferson recognized an able adversary in the the case while sitting in the Virginia Circuit new Chief Justice. Court. The Court's decision was a circumspect The Jeffersonians perceived quite correctly acquiescence in congressional authority to es­ that a judiciary controlled by Federalists, and tablish the lower federal court system A5 now armed with judicial review, might well un­ Marshall's consultation with the Associ­ dermine their entire legislative program. The ate Justices well in advance of hearing argu­ members of the Court, on the other hand, had ment on the matter provides an interesting ex­ good reason to fear the political power wielded ample of his leadership style. Even though he by President Jefferson and his party in Con­ was new on the Court, he sought the advice of gress. Impeachment proceedings were first ini­ his colleagues. Such a procedure might well be tiated against District Court Judge John construed as weakness on the part of Marshall. Pickering, a Federalist jurist who fluctuated be­ It might also be seen as what we now call tween drunken stupors on the bench and in­ TQM-total quality management. Sharing de­ sane ravings at home. After the Senate con­ cision-making is a skill that enhances subordi­ victed Pickering, the House of Representatives nates' morale and makes them part ofthe man­ proceeded to impeach Justice Chase only to agement team, but it can easily be construed as be frustrated by defections from the indecisive leadership. Doubtless these Jeffersonian majority. Chase was acquitted, and thoughts, even if considered by a different the independence of the judiciary was thus as­ name, must have occurred to Marshall. How­ sured, but the Supreme Court was not secure ever much his confidence and stature as Chief from legislative attack. Indeed from 1801 until Justice conferred power, Marshall took a cal­ Jefferson's death in 1826, there was continual culated risk at the very outset of his Supreme pressure to alter the jurisdiction of the Supreme Court service when he sought his Associate Court, particularly in regard to its authority to Justices' counsel and advice before dealing with hear appeals from the highest courts of the states the circuit court question.46 in federal question cases.49 What occurred next validated Chief Justice Marshall's credentials as an astute politician. The Jeffersonian Justices on Six days after Stuart v. Laird's acquiescence in the MarshaU Court congressional restructure of the federal courts, Marshall announced the Court's decision in The advanced age of Marshall's Federalist Marbury v, Madison. 47 Deftly eliminating all Brethren, with the exception of thirty-nine year­ issues other than the original jurisdiction of old Bushrod Washington, guaranteed that the the Supreme Court to issue a writ of manda­ Chief Justice would soon be required to deal mus, the Chief Justice issued an opinion of the with Jeffersonian appointees. Justice Johnson Court that incorporated the doctrine ofjudicial was the first Jeffersonian to join the Court. As review into Supreme Court precedent. Shaped we have already noted, Johnson did disrupt 12 JOURNAL 1998, Vol. I the tranquility of the Supreme Court, but seems Justice and his newest Associate Justice: to have done so primarily after Story took his seat in 1812. Justice Thomas Todd, appointed ... thanks to Marshall's genius for lead­ to the Court in 1807 by an expansion of the ership, "together" was the way the Court Court membership to seven, was never excep­ worked, at least until the institutional tionally productive of opinions, and for at least crisis of the mid-1820s. Marshall was part of his time, was preoccupied courting his clearly the catalytic force on the Court second wife. Justice Brockholst Livingston, at the time of Story's ascension and after distinguished service on the New York afterward as well. Supreme Court, joined the Court in 1806. Gabriel Duvall took his seat at the same time Story did, ... He did not usurp the duties of his but he was notable more for his silence and associates but, by virtue of his patience, lack of opinions, dissenting or otherwise. Al­ grace, and gentle humor, brought forth though each appointee up to Story's appoint­ what they had to give. And this was ment had impeccable Jeffersonian-Republican the key to Story's easy matriculation as credentials, they all were men with extensive well as his contribution to the Marshall experience in practice and on the Bench. They Court. The Chief Justices saw him for varied in ability and in willingness to file con­ the legal genius that he was and har­ curring or dissenting opinions, but as a group nessed his energy to the collective work they were much better equipped to challenge of the Court, even if it meant, as it did, Marshall's leadership than were their Federal­ surrendering some of his own preemi­ ist predecessors. And so we must ask, why did nence. 51 Chief Justice Marshall's Court continue to fol­ low what Jefferson most condemned-a Marshall's ready acceptance and encourage­ pronationalist view of federalism, and a com­ ment of Story is a good example of an estab­ mercial, economic diversification, view of lished group leader willingly endorsing the abili­ America's future? ties of the newcomer/2 and thereby recruiting To answer that question it is helpful to look the neophyte into cooperation with the group. briefly at the relationship between thirty-three Such approval of the new member's superiority year-old Story and fifty-seven year-old immediately relieves that individual of the need Marshall when the younger man joined the to impress others. At the same time, a leader's Court in 1812. The Massachusetts lawyer ar­ self-deprecation is disarming, and it obviates rived in Washington with a sense of anxiety, the need for the new member to resort to defen­ and perhaps even depression. Yet, as a former sive behavior.53 member of the House of Representatives, and As a new member ofthe Court, Justice Story as appellate counsel in Fletcher v. Peck, he was brought the gift of a thorough liberal arts edu­ already acquainted with many of his new col­ cation and a strong grasp of the Anglo-Ameri­ leagues. His first impressions of Marshall, can and Continental legal systems. Marshall Livingston, and Washington had been most and the others would draw heavily upon his favorable. Of Marshall, Story in 1808 exclaimed knowledge and strong reasoning in the years that he "loved his laugh, it is too hearty for an ahead. However, his integration into the group intriguer, and his good temper and unwearied of sitting Justices depended to a considerable patience are equally agreeable on the bench degree upon his becoming an attractive com­ and in the study." Young Story quickly settled panion: by demonstrating shared values, and into the Court's routine, and his biographer, by establishing social links that did not repre­ Kent Newmyer, suggests that it was undoubt­ sent a threat to the status of his fellow Jus­ edly Marshall who did the most to ease the tices.54 It was in these matters that the Chief anxiety of his first few days.50 Justice's acceptance and assistance proved to Professor Newmyer correctly assesses the be invaluable. position of Marshall on the Court, and the rela­ Story had "an unquenchable capacity for tionship that soon developed between the Chief talking," a trait he acquired from his mother. JOHN MARSHALL 13

"Why did Chief Justice Marshall's Court continue to follow what President Thomas Jefferson most condemned-a pronationalist view of federalism and a commercial view of America's future?" asks the author. The answer can he found hy examining Marshall's relation­ ship with his young ally, Joseph Story. At left is a litho­ graphed silhouette of the Great Chief Justice.

Professor Newmyer, noting Story's health prob­ lution, when he mollified the anger of fellow lems, commented that, "Unfortunately, recre­ officers who felt slighted by their commanders, ation for him was talking, not walking." On the the Chief Justice had been a peacemaker.57 He other hand, he respected his father's "great and doubtless performed the task for Story and natural tact and sagacity with little pretense to many others, but one instance from Marshall's learning."55 Story's experiences in the rough judicial career is clearly documented. Appar­ and tumble politics of New England added to ently either during argument, or in the oral de­ his natural combativeness and strong ambition. livery of an opinion, Story had referred to attor­ Yet he had been active in building political ney Littleton Waller Tazewell's argument as bridges between the remnants of the Massa­ being "subtle." The characterization rankled chusetts Federalist party on one hand, and like­ because of extraneous circumstances, and it minded Republicans on the other. 56 fell to Marshall to explain Story's lack of malice Despite their substantial personality differ­ to Tazewell and to persuade Story to remove ences, there was much about Chief Justice the offending comment from the printed opin­ Marshall that Story admired. In turn, Marshall ion. 58 seems to have been something of a guardian After a modest contribution to the Court's angel, turning conflict away from the loqua­ opinions in the 1812 Term, Story hit his stride cious Story's door. Since the American Revo- from 1813 through 1817, since the docket was 14 JOURNAL 1998, Vol. I heavily weighted toward maritime and prize On the other hand, the very nature of the cases, areas little known to Marshall and the Court's work and the background of its mem­ other Associate Justices .. The Court's Confer­ bers made for cohesion. This was, after ali, a ences undoubtedly became more heated as the court of law composed of men trained for the full impact of Story's intellect and volubility Bench and bar. It was a court in which appoint­ were felt. As Newmyer~uggests, these char­ JU"U,W.L,",U the members from po­ acteristics irritated colleagues on the Bench, after the debacle but Chief Justice Marshall was able to soothe trial in 1805. The hurt feelings and move the Court forward in its Court Justices in voting business. 59 l1,,,nn"lTH'm made persuasion and ex­ While it would be unwise to generalize from way in which decisions the relationship between Marshall and Story, it Court was what Professor seems safe to suggest. that many traits exhib­ ited by the Chief Justicei!l this friendship were also present in his association with other mem­ bers ofthe Supreme CQl4rt. The Court contin­ ued to be very much Marshall's Court, even after the accession ofJeffersonian Justices. Marshall's dissent in Ogden v, Saunders, strik­ Supreme Court decided ing though it appears in the hindsight of his­ coalitions among the tory, did not begin a of dissents by the way could a common Chief Justice.60 JusticeJ-Ienry Baldwin's men­ Professor Blau suggests tal breakdown and ''It!~C'',lV'' not only creates a need taken in stride. The that it actually facilitates its a modicum of unity kee cases despite the between reporters Henry have common objectives, ard Peters had sharply polarized the Court.6J dividual who makes the major

Chief Justice Marshall's ability to He"u'...... ion to their '".LU.U,<''''''''' obli- unity among members of the Court ~"!'5'."'.'" that his "people skills," supplemented by circumstances of the Court in I 801, and the nature of the Court's business, drew the Jus­ tices together into a coherent unit. At the out­ Decisionmaking was also faci litated by the set of MarshalI's chief justiceship there was a Justices' common background in the legal pro­ vacuum in leadership (and perhaps in prestige), fession, and in many cases by past experience which he immediately filled. His sagacity in on state courts. While lawyers do not neces­ political maneuver was demonstrated by the sarily agree, a common foundation in legal rea­ paired decisions in Stuart v. Laird and Marbury. soning makes it possible for them to identifY Only after he had asserted this leadership did the nature oftheir disagreements, In addition, the Jeffersonian appointees begin to arrive. practicing lawyers quickly learn the value of Marshall's quiet charm and willingness to share compromise, which in tum demands that dis­ decisionmaking with his colleagues, facilitated cussion between opposing counsel take place the continued use of the majority opinion even on a professional level and not become per­ after Marshall ceased to be the primary source sonallyoffensive. of opinions of the Court. However, Court records show that Marshall's absence from the Isolation and Cohesion Bench triggered a tendency toward seriatim opinions. "When the cat was away, the mice Sociologists and social psychologists tell quipped Justice William Johnson's us that opposition by external forces makes an , Donald Morgan. in-group more cohesive.65 The Marshall Court JOHN MARSHALL 15

ceremonial events, thereby driving them even closer together. Professor Blau suggests that exclusion and isolation promotes extensive in­ group association and communication-and an excellent opportunity to discuss grievances against oppressors. Furthermore, he points out that isolation weakens the societal restraints that might otherwise be imposed on the ex­ cluded group through community norms. 68 Social exclusion of the Supreme Court Jus­ tices persisted throughout the Jefferson years, but the Court gained social respectability dur­ ing the Madison administration- in fact, one might say it "manied" into the social whirl. Jus­ tice Todd, who joined the Court in 1807, was a widower, and soon was paying court to Lucy Payne, Dolly Madison's niece. They married in the White House in 1812, and the Supreme Court gained a foot in the door. That claim to social acceptability was enhanced when Chief Justice Marshall's grammar school classmate, James Momoe, became President in 1817. How­ ever, the Court's initial seclusion from Chief Justice Marshall managed to maintain Washington's social life had given birth to a unity on the Court despite various tensions. Even the mental breakdown and aggressive be­ new tradition that would well serve the goal of havior of Justice Henry Baldwin (above) was Supreme Court unanimity.69 taken in stride. Since their wives did not accompany the Justices to the Washington sessions of the Supreme Court, the Justices decided to room certainly gives evidence of that phenomenon. together in the same boarding house. We do Even after the appointment of a Jeffersonian­ not know if this predated Marshall's joining Republican majority, the Court retained its una­ the Court, but the movement of the capital to nimity, and seemed to follow Marshall's lead. Washington and the resulting lack of ameni­ In a fury," former President Jefferson wrote to ties, may well have made this a Marshall inno­ Justice Johnson in 1822, berating him for his vation. During Marshall's chiefjusticeship, the failure to dissent from Marshall's opinions.66 boarding-house arrangement permitted infor­ Although Johnson's dissent rate increased mal conferencing over meals and in the evening slightly, he was not persuaded to pose a con­ hours. 70 The conviviality of the boarding house tinuing challenge to Marshall's leadership. provided an excellent background against Undoubtedly, there was far more disagreement which the Court might work out compromises among the Justices than the public record re­ that were necessary for unitary Court opinions. veals, but each of them realized that institu­ It was a situation that capitalized on Marshall's tional survival depended upon solidarity in the use of his formidable "people skills." public eye. Significantly, Marshall's only dis­ As the city of Washington transformed from sent in a constitutional case occurred in Ogden a swampy town with unpaved streets into a na­ v. Saunders, decided in 1827, two years after tional capital, the boardinghouse tradition was Jefferson's death.67 undermined. In 1828 the Court repulsed a The Justices' isolation from the social ac­ feminine assault upon its monastic living ar­ tivities of the national capital added to their rangements. Justice Story's wife accompanied cohesion. Jefferson segregated the Justices him to Washington and arrangements were from all but the most formal governmental and made for her to reside with Story in the Court's 16 JOURNAL 1998, Vol. I

boardinghouse. Marshall grudgingly acqui­ mized the pressure to resolve professional dis­ esced with a chivalrous comment about how agreements in a nonemotional and impersonal pleasant it would be to have female company way. It is not easy to work with colleagues to lighten their social hours. However, he fol­ after an argument; it would be acutely painful lowed with a pointed observation to Story that to do so if they are the sole source of social he hoped Sarah Story's presence would not companionship, and you are required to eat a:ttl~ttt!IOn to the Court's breakfast, lunch, and dinner with them. In such business. Either the Storys took the hint the an atmosphere, unanimity of opinion is more following year, or the lady tired of legal table easily achieved, and Chief Justice Marshall's talk. In any event, she remained at home dur­ interpersonal skills would have had their great­ ing the succeeding Terms of the Marshall Court. est impact upon his fellow Justices. However, Marshall's fraternity of jurists was more vulnerable to the growing likelihood that Cbief Justice Marshall's Leadership Style newly appointed Justices would already have a residence in Washington, or would move their families there upon appointment. This began in 1829 when Justice John McLean, formerly Postmaster General and a resident of Washing­ ton, refused to move out of his own home to join the Court in its boardinghouse.?l gained the confidence and support of his As­ While historians have known about sociate Justices. His achievements in this re­ Marshall's boardinghouse for many years, it is gard deserve to be examined in terms of their remarkable that it has not been highlighted as impact on the Supreme Court as an institution. an important instrument for cohesion and tran­ We tend to ignore the substantial continuity quility among the Justices. Students of group that exists from one chiefjusticeship to the next. dynamics point out that sound decisionmaking Indeed, appointment to the Supreme Court is the product of constmctive disagreement and would seem to confer not only lifetime tenure, debate within a group, and this is called cogni­ but a long life in which to enjoy that tenure. tive conflict. However, if the differences be­ For example, Justice McLean's service extended come personalized and feelings are damaged, from Marshall's last five years through the animosity can develop and be destructive to Taney Court's Dred Scott v. Sa'!ford decision future group efforts. This is called affective in 1857. Such longevity can do much to institu­ conflictn The only significant indication of tionalize modes of decisionmaking and social­ affective conflict on the Marshall Court seems ization. To what extent does Marshall's achieve­ to be the competitiveness and personal aver­ ment continue to influence the Court and its sion that persisted between Justice Story and members? Justice Johnson. To a degree, this may have Since Marshall's day, the Supreme Court been fueled by jurisprudential disagreements, has continued its practice of usually speaking but Justice Story's tendency to speak endlessly with a unified voice through a majority opin­ with fl great show of emdition may well have ion. Reaching agreement among several very irritated not only Johnson, but also annoyed independent and strongly opinionated col­ other members of the Court. Johnson was leagues is no simple task. However, outright known to have a quick temper and some conflict and overt belligerence between mem­ aspects that we would today char­ bers of the Court, such as emerged in the chief lacking in social graces. He may justiceships of Harlan Fiske Stone and Fred had less tolerance for Story's law Vinson, has fortunately been a rare occur­ did the other Justices. They in rence.?4 Majority opinions and collegial deco­ Johnson's verbal attack upon the rum are institutional hallmarks that bear the Chief Justice in the course of Marshall's public Marshall stamp. By way of corollary, concur­ delivery of an 1820 Supreme Court opinion.73 ring or dissenting opinions, even though they The boarding-house arrangement maxi- may contain barbed and sharp criticism of the JOHN MARSHALL 17 majority, do not descend to the level of per­ cies left to the Court by Chief Justice Marshall. sonal attack. Members of the Court recognize Before ending this consideration of Chief that yesterday's opponent in Conference may Justice Marshall and the Supreme Court of his be tomorrow's ally. Keeping cognitive (and day, it is wise to remember once more that therefore, constructive) conflict free from per­ today's Court is not what it used to be. The sonal invective may well be one of Marshall's circumstances that faced Marshall were most valuable legacies. unique--as were his advantages in dealing with One of Marshall's most useful talents was them . His methods were not only very per­ his ease in consulting with his Associate Jus­ sonal, but they were more effective because of tices. Telling group members of a difficult prob­ the times and mores in which they were used. lem is a very useful way of getting advice with­ Although Marshall left a rich legacy behind out asking for it. 75 And asking for advice is him when he died in 1835, the institutional de­ preferable to commanding obedience, provided velopment of the Supreme Court of the United the leader does not lose respect in the eyes of States had only begun. his colleagues.76 Consultative processes en­ hance the position of an established and confi­ dent group leader, and we find Marshall using Endnotes them throughout his chief justiceship. Obtain­ ing advice on admiralty law and procedure from 1 5 U.S. (I Cranch) 137 (1803); for some analyses of Justices Story and Washington, Marshall not judicial review theory in the early republic see H. Jefferson Powell, "The Political Grammar of Early only saved himselffrom error, but also flattered Constitutional Law," 71 North Carolina Law Review his colleagues with recognition of their supe­ 1949 (1993); David E. Engdahl, "John Marshall's rior knowledge. Willingness to share exper­ 'Jeffersonian' Concept of Judicial Review," 42 Duke tise, working together for the good of the Court, Law Journal 279 (1993); Robert Lowry Clinton, Marbury v. Madison and Judicial Review (Lawrence: and being sensitive to the abilities and limita­ University Press of Kansas, 1989); Christopher Wolfe, tions of others, were other institutional lega- The Rise of Modern Judicial Review: From Con-

During Marshall's chief justiceship the Justices lived together in boarding bouses, sueh as this one, where tbey took meals together and discussed cases in the evening hours. We do not know ifthis situation predated Marshall's joining the Court, but the movement of tbe Capital to Washington and the resulting lack of amenities, may well bave made tbis a Marshall innovation. 18 JOURNAL 1998, Vol. I

stitutional Interpretation to Judge-Made Law II The Burr trials are discussed at Johnson, Chief (New York: Basic Books, Inc., 1986); and Sylvia Justiceship of Marshall, 124-131. See also Tho­ Snow iss, Judicial Review and the Law of the Con­ mas Perkins Abernethy, The Burr Conspiracy (New stitution (New Haven: Yale University Press, 1990). York: Oxford University Press, 1954), and Robert See generally, Herbert A. Johnson, The Cbief Jus­ Kenneth Faulkner, The Jurisprudence of John ticeship of John Marshall, 1801-1835 (Columbia: Marshall (Princeton: Princeton University Press, University of South Carolina Press, 1997), 57-62. J 968), 269-285. There is a thoughtful editorial note, 2 10 U.S. (6 Cranch) 87 (1810); Dartmouth College v. with accompanying documentation in The Political Woodward, 17 U.S. (4 Wheat.) 518 (1819). For dis­ Correspondence and Public Papers of Aaron cussion of these cases see Robert L. Hale, "The Su­ Burr, 2 vols., Mary-Jo Kline, ed. (Princeton: Princeton preme Court and the Contract Clause," 57 Harvard University Press, 1983), 2: 919-1047. Law Review 512 (1944); Nathan Isaacs, "John Marshall 12 Johnson, Chief Justiceship of Marshall, 128- on Contracts: A Study in Early American Juristic 129. Theory," 7 Virginia La w Review 413 (1921); C. Peter 13 Albert 1. Beveridge, The Life of John Marshall, 4 McGralh, Yazoo: Law and Politics in the New Re­ vols. (Boston: Houghton Mifflin Co., 1916-1919), 4: pUblic: The Case of Fletcher v. Peck (Providence: 535-540. Brown University Press, 1966). See generally, 14 The incident is described in Robert McCloskey, Johnson, Chief Justiceship of Marshall, 172-181. "Stephen J. Field," The Justices of the United States J 22 U.S. (9 Wheat.) I (1824); Johnson, Chief Jus­ Supreme Court, 1789-1969, 4 vols., Leon Fried­ ticeship of Marshall, 163-169; George L. Haskins, man and Fred L. Israel, eds. (New York: Chelsea House, "John Marshal! and the Commerce Clause of the Con­ 1969),2: 1083-1084. stilution," J 04 Universily of Pennsylvania Law Re­ 15 Fred L. Israel, "James Iredell," ibid., 1, 121-132, at view 23 (1955); Maurice G. Baxter, The Steamboat 128-129, 131-132. A realignment of circuits prior to Monopoly: Gibbons v. Ogden, 1824 (New York: Marshall's taking his seat permitted him to limit his Alfred A. Knopf, 1972); Felix Frankfurter, The Com­ Circuit Court service to Virginia and North Carolma, merce Clause under Marshall, Taney and Waite designated the Fifth Circuit. (Chapel Hill: University of North Carolina Press, 16 See the discussion of the judiciary Act of 1802 in [ 937). George Lee Haskins and Herbert A. Johnson, Founda­

4 See Max Lerner, "John Marshall and the Campaign tions of Power: John Marshall, 1801-15, Vol. II of History," 39 Columbia Law Review 396 (1939). History of the Supreme Court of the United 5 17 U.S. (4 Wheat.) 316 (1819); Johnson, Chief States (New York: Macmillan & Co., 1981),628. Justicesbip of Marshall, 142-147. 17 Johnson, Chief Justiceship of Marsball, 113- 6 19 U.S. (6 Wheat.) 264 (1821); Johnson, Chief 120, discusses the importance of federal circuit court Justiceship of Marshall, 152-154; W. Ray Luce, cases to the Supreme Court's appellate caseload, and Cohens v, Virginia (1821): The Supreme Court between those cases and and State Rights, a Reevaluation of Influences Court Justices assigned to and Impacts (New York: Garland Publishing Co., 1990); John V. Orth, The Judicial Power of the 123; the case is The United States: The Eleventh Amendment in at 190 (1814). American History (New York: Oxford University 'ersing his circuit court Press, 1987), 37-40. wrote a lengthy dissent 7 Circuit Court of Appeals Act of 1891, Mar. 3, 1891, ng their authority as an 26 Stat. 826-830; see also Peter G. Fish, The Office of Chief Justice of the United States: Into the Federal Judiciary's Bicentennial Decade urt's opinion may have (Charlottesville: University of Virginia, White Burkett established by Edmund Miller Center of Public Affairs, 1984), 38-39. of Appcals. The Great R Johnson, Chief Justiceship of Marshall, 113- and the Rule of 114. Press of Kansas, 1996), 9 Julius Goebel, Jr., Antecedents and Beginnings to 1801, Vol. 1, History of the Supreme Court of 21 Johnson, Chief Justiceship of Marshall, 90; the United States (New York: MacmiHan Co., 1971), Robert Seddig suggests that 1812 was the time when 537-538. Writing of the expertise necessary to try Marshall ceased to dominate opinion delivery, "John cases on circuit, Alcxander Hamilton cited the need to Marshall and the Origins of Supreme Court Leader­ know the law of all of the circuit's states. The diffi­ ship," 36 University of Pittsburgh Law Review 785, at culty of gaining and updating this knowledge was a 813,822 (1975). strong argument for lifc tcnure for federal judges. See 22 Johnson, Chief Justiceship of Marshall, 87, 90; Federalist 78, in The Federalist: or The New Con­ Haskins & Johnson, Foundations, 386, discusses the stitution (New York: Heritage Press, 1945), 526- evidentiary difficulties of determining authorship prior 527. For the Process Act provision see sec. 2, An Act to 1815. The problem remains, even after the Court's to regulate Processes in the Courts of the United States, manuscript opinions began to be preserved after 1830, Sept. 29, 1789, I Stat. 93-94, at 93. since most of them are "fair hand" copies that show 10 Johnson, Chief Justiceship of Marshall, 54-55, no insertions in the hand of another Justice. 135-137. 2J James Morton Smith, Freedom's Fetters: The JOHN MARSHALL 19

Alien and Sedition Laws and American Civil JJ Jean Edward Smith points to Marshall's nomination Liberties (Ithaca: Cornell University Press, 1956), to be Secretary of State as an example of bipartisan 324-328, 365-371 ; Haskins & Johnson. Foundations, endorsement of his reputation, John Marshall: 95 , 126, 238-239; William R. Casto, The Supreme Definer of a Nation (New York: Henry Holt & Co., Court in the Early Republic: The Chief 1996), 268-269.

Justiceships of John Jay and Oliver Ellsworth )4 ibid, 229-278; see al so the editorial note in The (Columbia: University of South Carolina Press, 1995), Papers of John Marshall, 4: 156-161 , and the docu­ 163-172. Since the limited number of Marshall Court ments that follow. appellate opinions date from the later decades of the Jl Great Chief Justice, 155 . chief justiceship, and Chase and Paterson were on the )6 John D. Cushing, "A Revolutionary Conservative: early Marshall Court, it is an interesting speculation The Public Life of William Cushing, 1732-1810," (un­ that the loss of papers and the preservation of only published Ph.D. dissertation, Clark University, 1959. "fair copies" of the decisions, may in part be attribut­ J7 John E. O 'Connor, William Paterson, Lawyer able to a desire to protect the identity of those who and Statesman, 1745-1806 (New Brunswick: Rutgers suggested unpopular changes in the text of opinions. Uni versity Press, 1979). 24 17 U.S. (4 WheaL) 122 , at 207-208 (1819). 38 Jane Shaffer El smere, Justice Samuel Chase 2l 25 U.S . (12 WheaL) 213-369 (1827). (Muncie: Janevar Publishing Co., 1980). 26 Ibid., 272-273. 39 Leon Friedman, "Alfred Moore," in Justices of 27 Charles Hobson points out that while Marshall did the United States Supreme Court, 4 vols., Leon not indicate that the retrospective aspect of the case Friedman and Fred L. Israel, eds. (New York: Chelsea was the basis for the Court opinion, he did say that the House Publishers, 1969), I: 269-279, quotation at 279. Court's opinion should be limited in application to the 40 See the ex change of letters between Timothy actual case under consideration. Great Chief Jus­ Pickering and Marshall, Sept. 20, 1798, and Sept. 28, tice, 100. Perhaps it was this ambiguity that caused l798, Papers of John Marshall, 3: 506-509. Justice Johnson to make his later comment in Ogden 41 Johnson to Thomas Jefferson, Dec. 10 , 1822, v. Saunders. quoted at Donald G. Morga n, Justice William 28 The Sherifs suggested that within a small group the Johnson, The First Dissenter: The Career and leadership role usually develops through group inter­ Constitutional Philosophy of a Jeffersonian action. It implies certain obligations of the leader, and Judge (Columbia: University of South Carolina Press, the group grows to expect he will assume those re­ 1954), 182 . sponsibilities. Among them is the more weighty re­ 42 Haskins and Johnson, Foundations, 183-184. sponsibility of handling contacts with other groups 4J Haskins and Johnson, Foundations, 157-18 J, 184. and their leaders. Muzafer and Carolyn W. Sherif, 44 The interchange between Marsha ll and the Associ­ Groups in Harmony and Tension: An Integra­ ate Justices is covered in detail in ibid., pp. 168-180; tion of Studies on Intergroup Relations (New York: the Stuart v. Laird opinion is at 5 U.S. (I Cranch) Harper & Brothers, 1953), 43, 45 . 299 (1803). 29 John Marshall to Agatha Marshall, July I, 1820, " . According to Dr. Hobson, Marshall was acutely Collection of the late Margaret Cardwell, Cambridge, aware of the Supreme Court's vulnerability to politi­ Mass. (photocopy in The Papers of John Marshall, cal forces, and for this reason he was willing to con­ Omohundro Institute of Early American History and cede Congress's ability to conduct its legislative busi­ Culture, Williamsburg, VA) . For discussions of ness without judicial intervention. That was true Marshall 's background see Johnson, Chief Justice­ even when Congress bestowed jurisdiction on federal ship of Marshall, 16-21, and Hobson, Great Chief courts to hear all cases invol ving the Bank of the Justice, 13-14. United States. Great Chief Justice, 133-135, 159. 30 Hobson, ibid, 19-20 . 46 Elton Reeves comments that involving the group

]I Casto, Supreme Court in the Early Republic, in goal determination and decisionmaking is a re­ 110-112. Professor Casto notes that there is little warding but difficult method of leadership. Dynam­ evidence of friendly di scussion in any correspondence ics of Group Behavior, 202-204. between the Justices of the Jay and Ellsworth Courts. 47 Johnson, Chief Justiceship of Marshall, 56- Ibid., 112. 57. J2 Professor Peter Blau suggests that past experiences 48 Haskins and Johnson, Foundations, 186-191; a of groups affect their social expectations of new lead­ good discussion of the earlier decisions embracing ership. The new leader must therefore either live up judicial review is in Hobson, Great Chief Justice, to the expectations generated by a popular predeces­ 43-46, 55 , 62-64. Hobson also considers Marbury to sor, or in the alternative, generate reform against a be a strategic retreat from the aggressive, partisan predecessor who has either been unpopular or less com­ stance of the Jay-Ellsworth Courts. Ibid., 49 . petent than the group had anticipated. Exchange 49 The Chase and Pickering impeachments are dis­ and Power in Social Life (New York: John Wiley & cussed in Haskins and Johnson, Foundations, 205- Sons, 1964), 147-148. Related to these aspects of 245 ; for a summary of these matters and other po­ leadership is the impact of rapport, and the conver­ litical and legislative attacks on the Supreme Court gence of goal identification among the leader and the or its Justices, see Johnson, Chief Justiceship of group. Elton T. Reeves, The Dynamics of Group Marshall, 62-65, 76-84. Behavior (New York: American Management Asso­ 50 R . Kent Newmyer, Supreme Court Justice Jo­ ciation, 1970), 189-192, 195-198. seph Story: Statesman of the Old Republic 20 JOURNAL 1998, Vol. I

(Chapel Hill: University of North Carolina Press, sense of counter-hostility in the in-group. E"change 1985), 75-83. and Power, 295. Reeves suggests that the group's 51 Ibid, 81. most innovative and creative action can result from 52 By the time Justice Story joined the Court in its reaction to a threat. Dynamics of Group Be­ 1812, Chief Justice Marshall had established and le­ havior, 129-130. gitimated his leadership. Professor Peter Blau re­ 66 The incident is detailed in Morgan, William minds us that, Johnson, 168-177. Professor Sherif suggests that when a group is in conflict with another group, devi­ A professional who manifests high respect ate personalities and frustrated members are influ­ and praise for a colleague implicitly subordi­ enced to exhibit their intense reactions within levels nates himself to the other, unless he is a of behavior acceptable to the group. Muzafer Sherif, renowned authority widely respected in his "Introductory Statement," in Intergroup Relations field, in which case his pmise of the colleague and Leadership: Approaches and Research in is a magnanimous gesture that does not at all Industrial, Ethnic, Cultural, and Political Ar­ reflect adversely on his own standing. eas, Muzafer Sherif, ed. (New York: John Wiley & Sons, 1962), 19. This would be in line with William Exchange and Power, 324; see also ibid., 142. Elton Johnson's description of the pressures brought upon Reeves also comments that a leader's reponsibility him not to dissent or concur separately, Morgan, includes maximizing the growth and development of William Johnson, 177-182. individual group members. Dynamics of Group Be­ 67 In Ogden, 25 U.S. (12 WheaL) 213 (1827), havior, 209. Marshall adopted the position that a contract arises 53 Blau, Exchange and Power, 48-49, 62, 75, J37. from the act of the parties, and should be interpreted 5' Reeves, Dynamics of Group Behavior, 151- to enforce their intention. The majority, freed from 153. Marshall's selection of an author for their opinion, 55 Newmyer, Justice Joseph Story, 15-16, 157. opted to write individual seriatim opinions, Johnson, 56 Newmyer, Justice Joseph Story, 45-48, 172- Chief Justiceship of Marshall, 93. 173. 68 Blau, Exchange and Power, 232. Marshall to Thomas Posey, Sept. I, 1779, Papers 69 Johnson, Chief Justiceship of Marshall, 97- of John Marshall, I. 32-34. 99; G. Edward White, "The Working Life of the 58 Johnson, Chief Justiceship of Marshall, 19- Marshall Court, 1815-1835," 70 Virginia Law Re­ 20. view, I, at 32, 40 (1984); Robert J. Steamer, Chief 59 Ibid, 82-83. Justice: Leadership and tbe Supreme Conrt 60 Dr. Hobson claims that Marshall's singular dissent (Columbia: University of South Carolina Press, 1986), was due to the fact that he believed the majority's 18, 19,52-53. opinion violated the very essence of the Constitu­ 70 Professor Blau suggests that the supply of advice tion. According to Hobson, Marshall believed that in a group is more readi ly available if the expert the Contract Clause formed an integral part of the members of the group arc not under time pressure, prohibitions on state legislative action; these in turn E"Change and Power, 18 1. The rooming house were the substitute for the Congressional veto on arrangement vastly increased the time available for state legislation proposed in the original Virginia plan. each Justice to both consult and gain advice from his Great Chief Justice, 77, 107. colleagues. See also the discussion in Morgan, Will­ 61 Ibid., J 10-111; Smith, John Marshall, 510-511, iam Johnson, 175-176, 516-522; Newmyer, Justice Joseph Story, 140- 71 Johnson, Chief Justiceship of Marsball, 97- 142. 99. 62 The opportunity of Marshall's absence gave rise 72 Allen C. Amason, "Distinguishing the Effects of to two spurts of seriatim opinions, one in 1805 and Functional and Dysfunctional Conflict on Strategic the other in 1807. Morgan, William Johnson, 179. Decision Making: Resolving a Paradox for Top Man­ 63 Blau; Excbange and Power, 170. agement Teams," 39 Academy of Management Jour­ M Ibid., 198; Blau also suggests that such patterns nal, 123 (1996); James A. Wall, Jr. and Robert become social institutions that are perpetuated Callister Ronda, "Conflict and its Management," 21 through historical methods, or through the creation Journal of Management, 5 I 5 (1995). of internalized social values transmitted through the 7J Johnson, Chief Justiceship of MarShall, 33- process of socialization. Ibid., 274. See also Muzafer 34. Sherif, in editor's introduction to Intergroup Rela­ 74 This collapse of administrative leadership is de­ tions and Leadership: Approacbes and Research tailed in Melvin I. Urofsky, Division and Discord: in Industrial, Ethnic, Cultural, and Political The Supreme Court under Stone and Vinson, Areas (New York: John Wiley & Sons, Inc., 1962), 1941-1953 (Columbia: University of South Carolina 6, 18. Press, 1997). 65 Peter M. Blau indicates that the out-group's hostil­ 75 Blau, Exchange and Power, 103. ity generates both cohesion in the in-group and a Ibid., 130, 141. Out of the Shadow: Roger Brooke Taney as Chief Justice

James B. O'Hara

Just as political historians rank Presidents, I Dred Scott decision, and more particularly judicial historians rank Supreme Court Justices. Taney's opinion in that case, seems bizarre. Not There are a dozen or so rankings of great Jus­ even a modem bigot would argue for a return tices, some long, with many names, some short, to slavery as Taney understood it. Taney in with only a few. 2 John Marshall is always first retrospect looks himself like a bigot, a Simon on the lists, and invariably we find Oliver Legree in judicial robes whose words are like Wendell Holmes, Jr., the senior John Marshall lashes on a slave's back. Why then do histori­ Harlan, Louis D. Brandeis, and Joseph Story. cal scholars rank him so high? Where is his Hugo L. Black, Felix Frankfurter, Charles Evans greatness? The story of this extraordinarily Hughes, Earl Warren, Benjamin N. Cardozo, and complex man, who lived in an extraordinarily William H. Taft usually rank high. More obscure complex and very perilous era, needs to be told or more controversial Justices like Robert H. agam. Jackson, Joseph P. Bradley, Samuel Miller, Roger Brooke Taney, fifth Chief Justice of Stephen 1. Field, John A. Campbell, William the United States, was born on March 17, 1777, Johnson, William O. Douglas, and the second in a still-standing house on the family farm in John Marshall Harlan sometimes appear. Calvert County, Maryland, not far from the But there is another name consistently Chesapeake Bay.3 He was the second son of found that jars the observer's eye. It seems the six children of Michael and Monica Brooke inappropriate, always accompanied by an omi­ Taney. Both the Taneys and the Brookes had nous shadow. The name is Taney, and the been in Maryland for more than one hundred shadow is Dred Scott. years at the time of Roger's birth. The family To us, accustomed to a long tradition of was landed gentry, living comfortably but not constitutionally guaranteed human rights, the opulently, on crops ofcorn and tobacco, sowed 22 JOURNAL 1998, VOL. I and reaped by slaves. Maryland was one of the few places in English America where one could be respectable and still be Catholic; the family was of that faith. Taney's religion was a shaping factor in his life, and service to the church became a recurring feature as he ma­ tured. He was the first Roman Catholic to serve in a President's Cabinet, and the first to serve on the Supreme Court.4 Taney was frail and sickly even as a child, but he excelled at swimming and riding, skills learned on the plantation and in the waters. Like many children raised in rural of the day, his early education was sketchy. studied for a while at a little schoolhouse ten miles from his home, but wretched and bad weather often made that a hit-or-miss As a young lawyer, Taney was friendly with experience. Later, a live-in schoolmaster tutored Motber Seton, the first American-born Catbolic the Taney children; perhaps the schooling was saint, whose school was not far from Frederic.k, assisted by a family library: Taney's father had where be practiced law. Elizabeth Seton founded been educated by the Jesuits in Europe. the Sisters of Charity near Emmitsburg, Mary­ land, before her death in 1821. At sixteen, the young man left for Carlisle, Pennsylvania, to study at Dickinson College, then very small with a faculty of three and a student body of fewer than one hundred. The His early legal practice was, because ofthe single building was, in Taney's words, "small limited population, also restricted. He does re­ and shabby," and fronted "on a dirty alley."5 count his first appearance in court. At the last Dickinson, with its strong Presbyterian roots, minute, there was a change in judges, and the might seem a strange choice for a devout Catho­ neophyte lawyer found himself facing one of lic family, but Taney flourished there. To the Maryland's most respected jurists, Gabriel end of his life, he retained his carefully written Duvall, later himself to become a Supreme Court student notes. And the brief biographical Justice. Taney was terrified but won the case. sketch he wrote about his early life shows great In 1801, recognizing that the opportunities pride that he was chosen valedictorian by his for a young lawyer were limited in his home classmates. Small though it was, Dickinson's county, and that Annapol is and Baltimore were early alumni lists were formidable. At one point already well served with leading lawyers, he in his life, Taney served on the Court with Jus­ determined to move to Frederick. It was a pros­ tice Robert Grier, a feIJow alumnus. President perous town in central Maryland where Taney James Buchanan was also a Dickinson gradu­ had relatives,? and where the death and retire­ ate. 6 ment of several established attorneys created After graduation, the young man took up prospects for the future. His calculations residence in the state capital of Annapolis to proved wise, and for the next twenty years he read law under the direction of Judge Jeremiah grew in stature as a leading citizen, with a prac­ Chase, and four years later he was admitted to tice that established his reputation for legal the Maryland Bar. He was at the same age­ competence and sound advice. His clients in­ twenty-twThomas Johnson, Revolutionary War gov­ landowners, and Calvert County was sparsely ernor of the state and also a former Justice of populated. the Supreme Court of the United States. His ROGER B. TANEY 23

however, and Taney veered to that element of the party that supported the war. Ultimately, he became a Jacksonian, ardently so, in a move that would profoundly influence his future. A family scandal marred his Frederick years. In 1819, Michael Taney, his widowed father, became involved in a fight at a party during which too much wine was consumed. In a scuffle over a young woman, the elder Taney grabbed a knife and killed a neighbor, one John Magruder. Disgraced, Michael fled to Virginia, and died there in exile. Apparently, extradition for murder was never sought. Roger, meanwhile, continued his success­ ful career. In an age when the most renowned lawyers relied on flamboyant oratory, Taney was a conspicuous exception. Never physically impressive, he was earnest, sincere, well-orga­ nized, and logical as he spoke in conversational Taney's friend and law partner was Francis Scott Key (above), the son of II prominent landowner tone to ajury or an appellate bench. His repu­ and tbe future author of the Star Spangled Ban­ tation grew outside Frederick, and finally, in ner. His sister, Anne Key, became Taney's wife in 1823, he moved to the more cosmopolitan city 1806. of Baltimore. In 1825, he became active in the national arena and argued his first cases before the Supreme Court. II In 1826, he was co-coun­ sel with Daniel Webster, later his great nem­ esis, in Etling v. Bank of the United States. During his preparation for this case, Taney was aghast at the unethical practices of the bank's directors and officers, and this probably set the stage for his war against the Bank ofthe United States later in his life. In the following year, he again argued before the Court in Brown v. Maryland, the case in which John Marshall formulated his "original package" doctrine, which decreed that states may not tax goods imported from foreign countries if the goods remain in their original packages. Taney also continued his service to his church. He attempted to mediate a dispute be­ tween the Archbishop of Baltimore and the Je­ suit Fathers at Georgetown University, with only modest success.14 He was one of the few laymen to attend the First Provincial Council of Baltimore in 1829, advising the assembled bishops from all over the country on matters of church incorporation and property. IS On his ini­ something of an anti-Jefferson screed, tiative, the Archdiocese of Baltimore was rein­ ran on the party ticket for a seat in the corporated in 1832,'6 and this reincorporation but lost. The events leading up to subsequently became the legal model for many l the War of 1812 brought a schism in party ranks, Catholic dioceses, even to the present. ? There- 24 JOURNAL 1998, VOL. I after, he was regularly consulted by the bish­ nian, although he had not taken part in national ops of Baltimore, New York, and Charleston on poHties. On the advice of friends who assured legal matters involving the church. 18 hini of Taney's political orthodoxy, Jackson By 1827, Taney's professional eminence brought the Marylander into his Cabinet as brought about his appointment by Governor Attorney General. The duties here were not Kent, a political opponent, as Attorney Gen­ onerous; indeed, Taney continued to reside in eralofMaryland. The entire bar recommended Baltimore. Principally, the Attorney General was him for this distinguished position, although expected to give legal advice to the Cabinet, the duties of advising the governor on matters and to fill the role now the responsibility of the of law and representing the state in litigation Solicitor General-arguing cases before the did not require him to renounce his private prac­ Supreme Court when the United States was a tice. Four years later, in an unbelievable series party. There was no Justice Department with of events, he was named Attorney General of staff or legislated responsibilities. But then as the United States. now, a Cabinet officer's influence could be Andrew Jackson's Secretary of War, John greater or lesser than the actual portfolio, and H. Eaton, had recently married a young widow, the measure of course, compatibility with Peggy O'Neill Timberlake, whose social stand­ the President. ing and reputation for easy virtue was an af­ The patrician Taney and the rough and un­ front to the wi ves of other Cabinet officers, and educated Jackson were compatible from the they refused to meet her socially. President start, and their mutual distrust of the Bank of Jackson was aghast at this treatment, and he the United States was the glue that bonded sided gallantly with the Eatons. An impasse them ever closer. In a short time, Taney was followed, and finally Jackson requested, and Jackson's most intimate and most trusted advi­ received, the resignations of his entire Cabi­ sor. net. 19 Congress had chartered the Bank of the There is no record that Jackson had ever United States in 1816, for the of stab i- met Taney, who by now was a devout Jackso·

Andrew Jackson appointed Taney Attorney General despite bis never baving met tbe Maryland lawyer, wbo lacked experience in national politics. Jackson bad to fill bis entire Cabinet quickly, baving gallantly dismissed bis previous appointees for refusing to socialize with tbe new wife of bis Secretary of War, Jobn H. Eaton (left). Peggy Timberlake Eaton (rigbt), a widow, was from a modest social background and bad a reputation for easy virtue. ROGER B. TANEY 25 controversial from the start, particularly in the One year had brought a change in the attitude West, and its enemies opposed both its poli­ of the Senate. Despite a flurry of unrealistic cies and its politics. The charter originally was activity to secure the nomination of Justice granted for twenty years to expire in 1836, but Story for the chief justiceship, and despite the the bank's directors decided to seek an early energetic opposition of Henry Clay, John C. renewal in 1832 at a time when a majority of Calhoun, and Webster, the Senate confilmed both houses of Congress and most of the mem­ Taney by a vote of 29-15. His enemies be­ bers of the Cabinet were known to favor it, de­ lieved he would destroy everything Marshall spite Jackson's own grave suspicions about had stood for. They were wrong. its constitutionality and its practices. The bank John Marshall's death signaled the end of miscalculated the President's resolve. Congress an era, but realistically, the era was over before did indeed recharter, and a majority ofthe Cabi­ he died. Marshall's like-minded compatriots net did in fact approve, but Jackson vetoed the had predeceased him; no longer were the great bill in a strong message written by Taney. constitutional decisions unanimous. Three of A political uproar followed, and Jackson the seven Justices were already Jacksonian ordered government deposits to be removed appointments: John McLean of Ohio, ap­ from the Bank of the United States, and to be pointed in 1829; Henry Baldwin of Penn sylva­ placed in state banks. When Secretary of the nia, in 1830; James MooreWayne of Georgia, in Treasury William J. Duane was reluctant to do 1835. Only Justice Story of Massachusetts, so, Jackson fU'ed him and put Taney in his place. appointed by President James Madison and Taney removed the deposits with enthusiasm, now in his twenty-fourth year on the Court, and the Bank slowly died. and Justice Smith Thompson, named by Presi­ The public picture of Taney at this point in dent James Monroe and now in his twelfth year, his life is interesting and somewhat amusing. were really Marshall Justices. Many of his critics (and there were many) saw In all, twenty Justices, including Taney him­ him as Jackson's dupe, blindly following or­ self, served during the twenty-seven years he ders that were not in the public interest and was Chief Justice, although four of these were that would bring financial ruin to the nation. Lincoln Justices named at the end of Taney's Others saw him as a gray eminence who used life. This constitutes almost a fifth of the entire Jackson as a puppet to settle old scores on the membership of the Court to the present day. hated Bank. The truth was at neither extreme: Historians have not been gentle on the six­ Jackson was no one's puppet, but Taney and teen non-Lincoln Justices. Aside from Taney the President were in such complete agreement himself, and Justices Story and Benjamin R. philosophically that their politics hannonized. Curtis, most have now been forgotten, but the But Taney had to pay his price. His ap­ verdict of many judicial historians is harsher pointment to the Treasury had been given dur­ than mere obscurity. The dean of Supreme Court ing a congressional recess. When Congress scholars refers to the Taney Justices as "ci­ returned, the Senate refused to confilm him­ phers," "lesser lights who failed to measure up," the first Cabinet appointment in history to be "non-entities," and "less than mediocre men."20 rejected. But many others disagree. If the overall When Justice Gabriel Duvall resigned from record of the Taney Court is in many ways the Supreme Court in January 1835, after al­ splendid, surely in some measure we must credit most a decade of profound deafness, Jackson the wisdom, experience, judgment, and intelli­ appointed his friend Taney to be an Associate gence of the judges on the Court. All but four Justice and once again Taney went down to of the Taney Justices served for more than ten defeat. It appeared that his political life was years, and nine served for more than twenty. over. He returned to legal practice in Baltimore. As a group, they brought exceptional political In July 1835, Chief Justice John Marshall experience and a richness and variety of back­ died. President Jackson waited almost six grounds to their work. months, then once again sent Taney's name to It would tax both patience and time to men­ the Senate, now for the office of Chief Justice. tion each of the Justices individually, but four 26 JOURNAL 1998, VOL. I stand out as exceptionally skilled and able. leagues, only to surface later as one of the ad­ Justice Story is one of the greatest figures vocates in the landmark Slaughterhouse in the history ofAmerican law. Only thirty-two Cases. 24 He regularly argued before the Court years old at the time of his appointment, he was until his death in 1889. 25 on the Court for thirty-four years. Concurrent In addition to these four, there were others with his judicial work, he was Dane Professor who brought impressive credentials to the of Law at Harvard (the first teacher of law at Court. Philip P. Barbour is the only Justice who Harvard) and author of a series of legal trea­ had been Speaker of the House; Nathan Clifford tises that continued to endure long after his had been Attorney General and chief negotia­ death. Story's volumes were the textbooks for tor of the treaty with Mexico after the Mexican three generations oflegal practitioners through War; Levi Woodbury served as governor of the nineteenth century2I New Hampshire, a Senator, and Secretary of Justice McLean had served as a Congress­ the Navy; Thompson was also a fonner Cabi­ man and as a judge before becoming Postmas­ net officer; James Moore Wayne had been ter General under President John Quincy Adams mayor of Savannah and a member ofCongress. and President Jackson-some say the greatest Justices John Catron, John McKinley, Pe­ Postmaster General in history, except perhaps ter V. Daniel, Samuel Nelson, and Robert C. for Jim Farley! His strong intellect and person­ Grier, in addition to the above-mentioned ality were marred, however, by one huge and Barbour, all had extensive experience on either overarching flaw. During his entire time on the the state or federal bench.26 These Justices Bench he angled constantly for a presidential may now be forgotten, but they certainly were nomination, wherever he could get it. Four accomplished and powerful in their day. times he ran for the presidency while on the It should be remembered that throughout Supreme Court, each time on the ticket of a dif­ the nineteenth century, Supreme Court Justices ferent party. It was always suspected, with some rode circuit, hearing cases at the trial level in justification, that his judicial decisions were federal courts scattered throughout the coun­ planks in his platfonn. try. For most of the Justices this meant exten­ Justice Curtis of Massachusetts replaced sive travel, often over dusty or muddy roads, Story in 1851, appointed by President Millard with frequent accidents. The discomfort, the Fillmore. Curtis was one ofthe finest lawyers low pay, the long months away from home led of his day, now chiefly remembered for his great many potential Justices to decline appointment, dissent in Dred Scott. After his resignation or, at least, not seek it. Taney himself had the from the Supreme Court, he was counsel for the easiest circuit-Delaware, Maryland, and Vir­ defense of Andrew Johnson during the im­ ginia-and visits to Virginia involved only a peachment trial.23 cruise down the Chesapeake Bay to Norfolk. Finally, Justice Campbell should be singled But still the circuit travel took its toll. Through­ out. Highly regarded as the South's leading out his twenty-eight years as Chief Justice, his lawyer, the entire membership ofthe Supreme health was precarious. Court asked President Franklin Pierce to ap­ The Justices came to Washington only point him, and the President obliged them. once a year to hear appeals for a Tenn that lasted When the Southern states began to secede af­ six weeks when Taney joined the Court, but ter Fort Sumter, Campbell attempted to mediate. that had become three months by the time of But finally, when his home state of Alabama his death. The Justices boarded in hotels or seceded, Campbell resigned to serve as an As­ stayed with friends. Their Courtroom was a sistant Secretary of War for the Confederacy. small chamber in the basement of the Capitol, In the waning days of the war, Campbell met now open as a museum. The place where secretly with Lincoln in Richmond to negotiate Marshall and Taney presided, and where Daniel tenns and conditions for the fallen South, but Webster argued, was then variously described Lincoln's death shortly thereafter ended the ef­ as dark, damp, cold, full of drafts, and smoky fort. He was jailed at the war's end, then par­ from whale oil lamps and malfunctioning fire­ doned at the request of Supreme Court col- places.27 The Justices had no dining room, ROGER B. TANEY 27 no conference room, no offices, and an inad­ During Taney's first year on the Bench, a equate library. They had no clerks, no secretar­ case with profound implications came to the ies, and, except for the Marshal, the Clerk, and Court. In 1785, the legislature of Massachu­ the Reporter, no staff. Cases often had to be setts had chartered a corporation to build a postponed because the Term was so short. Ill­ bridge connecting Boston and Cambridge. The ness or inability to travel sometimes meant the corporation sold bonds to raise capital, built absence of a quorum and sometimes vacancies the bridge, and then charged tolls to payoff extended for many months because of battles the bonded indebtedness. Now, some fifty years between the Senate and the President. John later, the debt had long since been paid, but the Tyler alone had five Supreme Court nomina­ tolls continued as a source of regular income to tions rejected. bondholders. A new corporation, seeking to But for all these difficulties, the Taney Court, build a second bridge, parallel to the first, pro­ and Taney himself, made enduring contribu­ posed to charge tolls only until the structure tions. 28 There was, particularly, a sea change in was paid for. It was afterward to be free. the direction of American commercial law. Manifestly, a new free bridge would destroy The Constitution quite clearly gives to the the income flow of the older bridge. So the federal government all responsibility for the original company sued the new one, charging regulation of commerce "among the several that the new charter was illegally granted in states." But in the infancy of the nation, inter­ violation of the contractual agreement implied state commerce was negligible. Almost all busi­ in the first charter. In some ways, the issues of ness was small and local. The political forum the case resembled the Dartmouth College case most responsible for regulation was the state of 1819, in which the Marshall Court held that a legislature, not the Congress. corporate charter was a contract that could not When business issues came to the Supreme be modified in any way by a subsequent legis­ Court, the Justices usually were able to settle lature. Had this reasoning prevailed, the old the disputes using the well-recognized prin­ bridge company would have won the case. Ob­ ciples of contract as they had developed in the viously, this rigid reading would have imposed common law. But, in truth, few real business enormous obstacles to American commercial transactions even came to the federal courts; development. Justice Story, John Marshall's state courts settled them. However, as the coun­ stalwart friend and closest collaborator, was the try grew in population and land area, as forests senior Justice on the Taney Court. He agreed were leveled and cities were built, as canals with Daniel Webster that the owners of the old were dug and roads were paved, the bright le­ bridge should prevaiL gal line between federally regulated interstate Taney disagreed. A relatively young man, commerce and locally regulated commerce grew his political career as Secretary of the Treasury dimmer. Similarly, the old common law was and Attorney General in the Cabinet of An­ stretched to its limits as the mercantile system drew Jackson had made him something of a began to decay in the face of industrialization. populist, with a profound distrust of the en­ When Taney became ChiefJustice in 1836, trenched establishment embodied by the own­ less than a decade after the nation's first rail­ ers of the first bridge. He was able to win the road tracks had joined Baltimore to Ellicott City, support of a majority, and Charles River Bridge a new look at the Commerce Clause was re­ v. Warren Bridge 29 has become one of the land­ quired, along with a new understanding of the mark cases of Americanjurisprudence. applications of the common law to commercial The Chief Justice insisted that legislatures transactions. During the entire era when John could not give away a public benefit by impli­ Marshall presided over the Supreme Court, there cation, that monopolies could not be created was a consistent tendency for the Court to err accidentally in silence. He was concerned that in favor of established commercial entities and the commercial and industrial growth of the to look skeptically at developing trends. In country would be crippled if every canal com­ retrospect, it is clear that this policy had to pany could claim a monopoly to prevent a rail­ change. road, if every manufacturer could use its own 28 JOURNAL 1998, VOL. I

One of Taney's greatest jurisprudential achievements is Charles River Bridge I!.Wltl'l'ell which provides many of the legal underpinnings for modern corporate law. At issue was whether the owners of the Charles River Bridge (above), a toll bridge built in the 1780s to link Boston with Cambridge, could claim that their state charter gave them exclusive right to traffic across the river. charter to forestall new technology, and if ev­ ing commercial development to often parochial ery bridge company could veto new bridges and fickle local interests. The regulation of desperately required by territorial growth and a commerce, the Court declared, belonged to the burgeoning population. Taney's reasoning did federal government primarily and to state gov­ not reverse Marshall's earlier logic, but it nu­ ernments subordinately. This healthy rubric anced it in subtle ways that changed its direc­ still prevails. tion. The Charles River Bridge case provided It was also the Taney Court that first an­ many of the legal underpinnings of modern cor­ nounced the "political question" doctrine, porate law. which established that some issues belong The Court also encouraged the growth and properly, not to courts, but to the legislative power of state-chartered banks,30 and pennit­ branch of government, and that legislatures ted companies incorporated in one state to do should be free ofjudicial interference with their business without undue impediment in other work.33 statesY In Cooley v. Board of Wardens,32 the There were regular battles involving the Taney Court supplied the workable dividing line reach of the admiralty powers. In English law, for federal and state regulation of business un­ maritime jurisprudence applied only in waters der the Commerce Clause. where there was a tide, but England knew no The Cooley case brought an ordered end rivers like the Ohio or the Mississippi, nor did to the argument that the Conunerce Clause gave England have the Great Lakes. Ultimately, both exclusive power over interstate commerce to statute and court decisions settled the ques­ the federal government alone. But it also dis­ tion in favor of federal jurisprudence on navi­ posed of the pernicious idea that the states gable waterways, despite great divergence on had an equal role with the federal government, the Court. At opposite extremes were Justice a position that would have subjected a grow- Story, who it was said would apply admiralty ROGER B. TANEY 29

law for the theft of a toy boat from a bucket of Hugo L. Black. water, and Justice Daniel, who seldom found Taney aged gracefully. He was fifty-seven for federal jurisdiction anywhere. J4 In extend­ when appointed. As time progressed, his long ing admiralty jurisdiction, the Court overturned hair turned white and his face became deeply centuries of English precedent, along with its lined. His life-long thinness made him appear own earlier decisions. ever more frail, and it seemed that each year Taney's personal contribution to this new would be his last. But he carried on with no vision was impressive. Modem concepts of impairment of his mental faculties. conservatism and liberalism, strict construction By the early 1850s, the Supreme Court was and activism, cannot accurately be applied to a at the height of its influence and reputation. It jurist who lived a century and a half ago. But was universally respected, with a Chief Justice there are characteristics of his jurisprudence admired and even loved. But in 1855, when that have a modem resonance. He was very Taney was seventy-seven years old, there be­ much a Jacksonian populist, with a profound gan a rapid succession of three tragedies that reverence for the good sense of the average made Taney a star-crossed, bitter, dejected, and man, not unlike Abraham Lincoln's similar view. hated old man. He looked at the Constitution as a document of The first tragedy was personal. In the sum­ essential compromise, and he read it quite liter­ mer of 1855, while the family was vacationing at ally. His understanding of dual federal-state Old Point Comfort, Virginia, an epidemic ofyel­ sovereignty made him a Jeffersonian. He was low fever broke out. On the same day Taney personally opposed to slavery, and emancipated lost his wife and a daughter to the disease. Be­ his own slaves as a young man, but he accepted wildered and numb, he returned to Baltimore, the constitutional compromise that made sla­ but was unable to remain in his home because very a decision left to the states. But his ab­ of the memories. Somewhat hastily, he moved horrence of the international slave trade, permanently to Washington, purchasing a town coupled with the constitutional prohibition of house on Indiana Avenue where he lived with slave importation made him inflexible on that two daughters. His family and his church were issue. He voted with the majority to free the his only consolations and he became increas­ African defendants in the celebrated Amistad ingly reserved in demeanor and isolated so­ case.J5 cially. There is one other aspect of his jurispru­ The second tragedy was the Dred Scott dence that is thoroughly modem. Most of the case. J6 Somewhat surprisingly, in the fifty years early Justices, from Washington's appointees of the Supreme Court's existence it had heard to Jackson's, following the lead of James Wil­ relatively few cases bearing directly on slavery. son, regarded the Constitution as subservient The vast majority involved prosecution under to a divinely established higher law-the "law the Fugitive Slave Laws; a few arose out ofthe of nature and of nature's God"-as Jefferson continuing importation of slaves. The opposi­ so eloquently put it in the Declaration ofInde­ tion to the laws on fugitives came mostly from pendence. Ofthe twenty-three Justices before northern circuits where the laws were unpopu­ Taney, only Samuel Chase had hinted that the lar-particularly in Ohio and Massachusetts. constitutional decisions of the Court had to be Ironically, the cases on importation also came founded on the text of the Constitution, or on from the North, since the shipowners were the text of laws, rather than on a "higher" law mostly from New England. But while the actual believed to be from God. Taney set out on a prosecutions usually did not reach the docket new course. He was the fust constitutional of the Court itself, the Justices on circuit regu­ positivist to serve on the Court. larly encountered them. Perhaps it might help us to understand The Dred Scott case posed new questions Taney if we note that in his populism, in his potentially devastating for the preservation of reverence for the constitutional text, in his rural the Union. The facts are well known. Dred morality, in his clarity of expression, and in his Scott was a slave owned by a citizen of Mis­ common sense, he was a nineteenth-century souri, Dr. John Emerson, an army doctor who 30 JOURNAL 1998, VOL. I took Scott with him on tours of duty first to the free state of Illinois, then to federal territory in what is now Minnesota. Under the terms of the Missouri Compromise of 1820, the northern parts of these territories were free. Scott claimed that his living on free soil had fTeed him. Ini­ tially, he made his claim in the state courts of Missouri, which ruled against him. Arguing essentially the same facts, Scott took his claim to federal court, alleging diverc sity of citizenship, since he himself was Missouri, and John Sanford, an executor Emerson's will, was from New York. The federal

original was assigned to write the opinion. However, by this time, the case had achieved some noto­ unconstitutional. (It had actually already been riety. The abolitionist press agitated; members repealed by the Compromise of 1850, but since of Congress pleaded from the halls of the Sen­ the events of Scott's life had occurred before ate and House that the Court should use the then, the issue was before the Court.) Finally, Scott case to settle the question of slavery in Taney traced, none too accurately, the history the territories once and for all. President Franklin of slavery in the United States from colonial Pierce, then later President-elect James days as a background to render a definitive Buchanan, watched apprehensively. The two legal definition of citizenship. He concluded dissenting Justices, McLean and Curtis, indi­ that not only were slaves not freed cated that they intended to discuss the sub­ slaves could not be citizens either. stantive questions in their dissent. McLean In the course of his long opinion, the Chief was running for President again when the case Justiee made reference to an "unfortunate was first argued; the Justices voted to hear ar­ that had no rights thc white man was "bound guments a second time mainly to keep the Court to respect." While that language was used in from becoming embroiled in the presidential the context of early colonial slavery, it was in­ campaign of 1856. flarnnlatory and it inflamed. Finally, Justice Wayne proposed that the Virtually every aspect of this case was star­ Court broaden its decision to deal with the sub­ crossed. One of Scott's lawyers was the brother stantive constitutional questions, and that the of one of the Justices; one of the Justices was Chief Justice write the opinion of the Court. He running for President; two of the Justices were did, with disastrous results. privately commtmicating to the President-elect; Taney began by holding that Scott did not one of the Justices asked the President-elect to have standing and was still a slave. That is use his influence to sway another Justice. The where he should have stopped. He then took standards of judicial behavior are now happily up the question of slavery in the territories, different. and ruled that Congress could make no law It is hard to believe now, but Taney was depriving citizens ofproperty, even slave prop­ actually attempting to find a middle ground. erty. The Missouri Compromise was therefore The abolitionist movement had disinterred the ROGER B. TANEY 31 old doctrine of nullification and had encour­ Modem historians are unanimous in con­ aged some northern states to ignore enforce­ demning the decision, calling it minous to the ment of the Fugitive Slave Laws. In the South, Court itself, and a cause of the Civil War. While a growing movement for secession became the decision erred fundamentally in attempting more intense, Taney seemed to reason that the to decide a constitutional issue not required by Union could only be preserved if the Court the Iitigation,37 Dred Scott had virtually no last­ could steer a course between nullification and ing effect. It was overmIed, after all, by one secession. For him, even though he had freed Civil War, three constitutional amendments, and his own slaves years before, the perilous and hundreds of acts of subsequent legislation be­ ambiguous compromise of the Constitutional ginning with the Reconstmction Congress. Convention was the only safe ground. One is also tempted to say that even without Obviously, the attempt failed. The rift be­ Dred Scott, the continuing abolitionist move­ tween North and South widened. The aboli­ ment and Southern resistance to it would have tionist wing of the newly formed Republican brought about secession with the election of party was outraged, while Southern voices any Republican President in 1860. Nor was there hailed the decision as wise and statesmanlike. any permanent damage to the Court. By the The fact that five of the nine members of the end of the Civil War, Lincoln had appointed Court (Taney, McKinley, Daniel, Wayne, and five Justices, including his abolitionist Secre­ Campbell) came from slave states, and that two tary of the Treasury Salmon P. Chase as suc­ others (Grier and Nelson) were "Doughfaces," cessor to Taney, and criticism of the Court -Northerners with Southern sentiment--only abated with each appointment. Dred Scott him­ made things worse. selfwas freed by his new owners. The impact 32 JOURNAL 1998, VOL. I ofthe case was chiefly symbolic, but symbols so because he thought that a conflict could are often more important in the shaping of occur if he had a personal interest in United events than reality ever can be. States bonds because so many cases before The third tragedy was the Civil War itself. the Court could affect their value. When Vir­ Taney was almost universally regarded as a ginia left the Union, his life savings were lost. Copperhead, living in the North but secretly in Even though Taney was in his eighties, he could sympathy with the Confederate cause. Two not resign, his modest salary was his only in­ Supreme Court cases encouraged this view. In come. 1861, Lincoln authorized the army commander When finally the old man died on October of Federal troops in Baltimore to suspend ha­ 12, 1864, he was in disgrace. The national beas corpus, if necessary. In May of that year, mourning at the time Marshall's it was thought necessary, and more than one thousand citizens of Maryland, including the mayor of Baltimore, were alTested by the mili­ tary and confined without charges at Fort McHenry. One of those arrested, John Merryman, petitioned Taney, sitting in circuit, for release. The Chief Justice ordered General Cadwalader to produce Merryman in federal Within the year, a pamphlet that attacked court. Efforts to serve process on the general Taney was widely distributed. It was called proved futile. Taney held that Merryman's ar­ "The Unjust Judge, and the sentiments es­ rest was illegal on two counts: first, the sus­ poused were widely enough shared that Con­ pension of habeas corpus seems to be given gress refused to appropriate fimds for a bust of by the Constitution not to the President or to the Chief Justice to be commissioned, although the military, but to Congress; and second, the a subsequent Congress changed this decision. courts of the United States were open and sit­ It is safe to say that no other member of this ting in Maryland. Charges against civilians Court has ever remained in such ignominy af­ properly belonged in those courts, Taney rea­ ter his death. soned. 38 But the old man realized he had no that his chief antago- power to enforce his ruling. He sent his opin" y,.. ",n,,,,, ",.'umner and Horace Greeley ion to Lincoln, who ignored it. Merrymanwas who really knew subsequently indicted for treason, but impressed by his never brought to trial. Interestingly, a few Attorney General later, the Supreme Court, in a strikingly in Lincoln's Cabinet case, voted 9-0 to order the release of a efore the Court, often arrested by the military and facing military to the philosophy The decision was written by Justice warmly of his hu-

tation suffered further. nity, his love of order, his gentleness, his cau­ The war was devastating to Taney in yet tion, his accuracy, his discrimination, were of another way. In an age before stock markets, incalculable importance. The real intrinsic char­ Taney had long ago placed his personal invest­ acter of the tribunal was greatly influenced by ments in State of Virginia bonds. He had done them; and always for the better."43 ROGER B. TANEY 33

And finally, these words from the great Jus­ Hughes called him "a great Chief Justice,"46 and tice Samuel Miller, appointed to the Court by Justice Frankfurter deemed him "second only Lincoln: to Marshall."47 But the cloud of Dred Scott will always remain. His positive contributions have When I came to Washington, I had never been almost completely forgotten; his greatest looked on the face of Judge Taney, but mistake has defined him. I knew of him. I remembered that he had attempted to throttle the Bank of the United States, and I hated him for it. I Endnotes remembered that he took his seat upon the Bench, as I believed, in reward for I The most recent examples of this genre are Arthur what he had done in that connection, M, Schlesinger, Jr., "The Ultimate Approval Rating," The New York Times Magazine (Dec, 15, 1996) 46; and I hated him for that. He had been and William J. Ridings, Jr., and Stuart B. Mciver, the chief Spokesman of the Court in the Rating tbe Presidents (1997). Dred Scott case and I hated him for that. 2 Robert C. Bradley summarized the standard lists in But from my first acquaintance with him, his article "Who are the Great Justices and What Criteria Did They Meet?" in William 0, Pederson I realized that these feelings toward him and Norman W. Provizer (eds.), Great Justices of were but the suggestions of the worst the U.S. Supreme Court (1993) l. See also Ber­ elements of our nature; for before the nard Schwartz, A Book of Legal Lists (1997), 3-27, first term of my service in the Court had j Taney is the subject of three twentieth-century biographies. The classic standard is Carl Brent Swisher, passed, I more than liked him; I loved Roger B. Taney (1935). See also Bernard C. Steiner, him. And after all that has been said of Life of Roger Brooke Taney (1922) and Walker that great, good man, I stand always Lewis, Without Fear or Favor (1965). The factual ready to say that conscience was his details of this paper are drawn principally from Swisher. guide and sense of duty his principle.44 4 Taney's Catholicism, while often criticized in the sectarian press, never seemed to be a liability in hi s Taney came to the Court as Marshall's suc­ political life, although a rather quaint book of letters cessor. Working with a succession of fierce ly attacking the Catholic Church was published in 1852 under the title Romanism at Home: Letters to independent Justices, appointed by eleven dif­ the Hon. Roger B. Taney, Chief Justice of the ferent Presidents, he led wisely and well. If United States, written by the Rev. Nicholas Murray, his critics expected a revolution against a Presbyterian polemicist who used the pseudonym MarshaU'sjurisprudence, there was none. What Kirwin. See also Ray Allen Billington, Tbe Protes­ tant Crusade 1800-1860: A Story of tbe Origins really occurred was subtle adjustment, nuanced of American Nativism (1938), 253. reevaluation, a more balanced view offederal­ , Samuel Tyler, Memoir of Roger Brooke Taney, ism, a deep appreciation of constitutional val­ LL.D (J 872), 38. The first chapter of Tyler's book, ues, and a profound Jacksonian faith in the covering Taney'S early life, was written by Taney himself. greatness of ordinary people. His miscalcula­ Taney graduated in 1795, Grier in 1812, and tion on Dred Scott may have destroyed his his­ Buchanan in 1809. torical reputation, but nothing can destroy his 7 Only a dozen miles from Frederick, a little village real contribution to our country and its history. called Taneytown already bore the family name. S Thomas w. Spalding, The Premier See: A His­ In recent times that reputation has begun tory of tbe Arcbdiocese of Baltimore, 1789-1989 to be changed, at least a little. Modem histo­ (1989), 79. rian Kent Newmyer has this to say: "He 9 Telephone interview with Sister Betty Ann McNeil, brought. . a high intelligence and legal acu­ DC; Daughters of Charity, Emmitsburg, Maryland, May 5,1997. men, kindness and humility, patriotism, and a 10 The house at 121-123 S. Bentz Street is now a determination to be a great Chief Justice ...." museum under tbe direction of the Frederick County He was a Southerner who loved his country, a Historical Society. states' righter dedicated to the Union, a slave­ " James B. O'Hara, "The Justices as Lawyers: Jus­ tices Who Have Argued Before the Supreme Court," holder who regretted the institution and manu­ 17 Supreme Court Historical Society Quarterly mitted his slaves, and an aristocrat with a demo­ (1996), 9. The cases were Manro v. Almeida, 23 U.S. cratic political philosophy."45 Chief Justice (10 Wheat.) 473 (1825) and The Gran Para, 23 U.S. 34 JOURNAL 1998, VOL. I

(10 Wheat.) 497 (1825). (n.d,). This publication is a small guidebook distrib­ 12 24 U.S. (II Wheat.) 59 (1826). uted at the old Supreme Court Chamber. LJ 25 U.S. (12 Wheat.) 419 (1827). 28 The definitive study of the Taney Court is Carl B. 14 Lewis, supra n. 3 at 94-96. Swisher The Taney Period 1836-64 (J 974). See " Baltimori Habita Ab also R. Kent Newmyer, The Supreme Court un­ ad Annum J 840 (1842) 42. der Marshall and Taney (J 968) and Felix Frank­ See also Peter Gui/day, A History of the Councils furter, The Commerce Clause under Marshall, of Baltimore (1932), 89. Taney and Waite (1937). A still useful study of 16 1832 Md. Laws 308. Taney's jurisprudence is Charles W. Smith, Jr., Roger 17 James B. O'Hara, 'The Modern Corporation Sole," B, Taney: Jacksonian Jurist (1932). 93 Dickinson Law Rf!yiclv(l988), 23-29. 29 36 U.S. (II Pet.) 420 (1837), 18 Richard Shaw, John DuBois, Founding Father 30 Briscoe v. Commonwealth Bank of Kentucky, 36 (1983), 34; Peter Guilday, The Life and Times of U.S. (! I PeL) 257 (1837). John England 1786-1842 927), 592. "Bank of Augusla v. Earle, 38 U.S. (13 PeL) 519 The is recounted in all the (1839). standard biographies. See e.g" Arthur M, 32 53 U.S. (12 How.) 299 (1852).

Schlesinger, Jr., The Age of Jackson (1945), 54, or }J Luther v. Borden, 48 U,S. (7 How.) I (1849). Donald B. Cole, The Presidency of Andrew Jack­ 34 See Swisher, supra n. 28, 423-456. son (1993), 34-39. ibid., 189-196. The case itself was u.s. v, The 20 Schwartz, supra, n. 2 at 39, Amistad, 40 U.S. (15 Pet.) 518 ( \ 841). Gerald T. Dunne, Justice Joseph Story and the ;6 The classic study of Dred Scott is Don E. Rise of the Supreme Court (1970); James Fehrenbacher, The Dred Scott Case (1978). The McClellan, Joseph Story and the American Con­ case itself is SCali v. Sandford, 60 U.S. (19 How.) 393 stitution (1971); R, Kent Newmyer, Supreme (1857). Court Justice Joseph Story (1985). 37 William H. Rehnquist, The Supreme Court: How 22 Francis P. Weisenburger, The Life of John It Was, How It Is (1987), 144. McLean (1937). 38 Ex parle Merryman, see James Mason Campbell 23 There is no modem biography of Justice Curtis, but (ed,) Reports of Cases at Law and Equity and in the memoir by his son is still useful. See Benjamin R. the Admiralty Determined in tbe Circuit Court Curtis, Jr" (ed,J, Memoir of Benjamin Robbins of the United States for the District of Mary­ Curtis (1879). land by Roger B. Taney (187l), 246, 24 83 U.S. (16 Wall.) 36 (1873). J9 Ex parle Milligan, 71 U.S. (4 WaiL) 2 (1866). Henry G. Connor, John Archibald Campbell ,0 111e Prize Cases, 67 U,S, (2 Black) 635 (1863). (1920). 41 Lewis suggests that the anonymous author of the 26 Brief biographies of the Taney Justices can be found pamphlet was Charles Sumner, See Lewis, supra n.3 in Kermit L Hall (ed,), The Oxford Companion to at 477-492. the Supreme Court of the United States (1992); 42 Quoled in Swisher, supra n.3 at 578, Clare Cushman (ed.), The Supreme Court Justices: " Quoted in Lewis, supra n.3 at 473, nd Illustrated Biograpbies, 1789-1995 (2 ed" 1995); 44 Charles Fairman, Mr. Justice Miller and the Melvin L Urofsky (ed.), The Supreme Court Jus­ Supreme Court 1862-1890 (1939) 52, tices: A Biographical Dictionary (1994); Henry 4S Newmyer, supra n,28 at 94. J. Abraham, Justices and Presidents (3'" ed., 1992), Quoted in Swisher, supra n. 3 at 582. 27 See The Supreme Court Chamber, 1810- 1860 47 Frankfurter, supra n, 28 at 73. Melville W. Fuller Reconsidered

James W. Ely Jr.

Appointed Chief Justice by President the Progressives, who pictured the Fuller Court Grover Cleveland in 1888, Melville W. Fuller as a handmaiden of big business. Thus, Owen presided over the Supreme Court during a piv­ M. Fiss in his recent book expressed the con­ otal era of Amerioan history. J Fuller and his col­ ventional wisdom: "By all accounts, the Court leagues were the first to grapple with a myriad over which Melville Weston Fuller presided, of modern legal issues arising from the eco­ from 1888 to 1910, ranks among the worst. 2 Yet nomic transformation of the United States into such a bleak assessment is problematic. First, an industrial nation. In so doing, the Fuller it is clearly subjective, because it depends upon Court rendered a host of important and well­ the value choices of the evaluators. Several known decisions-Pollock, Debs, E.c. Knight commentators have revealingly argued, for in­ Co., the insular cases, Plessy, Lochner-that stance, that the problem with the pre-New Deal defined economic and social institutions well Court was that the Justices gave content to the into the twentieth century. The Court also ruled property clauses of the Constitution and en­ that compensation for private property taken forced rights associated with market freedom for public use was an essential element of due against government power. These apparently process as guaranteed by the Fourteenth were the wrong rights. 3 But is there a principled Amendment, and invoked the dormant Com­ basis by which we can decide that constitu­ merce Clause to protect the national market tional guarantees ought to be enforced? Should from state-imposed obstacles to commerce. historical reputation tum upon what claims of By and large, however, history has not been right are currently fashionable in political or kind to Fuller and his associates. Historians academic circles? Second, it ignores an array have been all too prone to echo the views of of scholarship suggesting that the traditional 36 JOURNAL 1998, VOL. I image of the Fuller Court is more a bogey con­ of the Fuller years. A fundamental goal is to structed by the Progressives for political pur­ dispel the entrenched mythology that has long poses than a product of careful investigation. distorted our understanding of the Fuller era. The Progressives, of course, were far from dis­ passionate observers. On the contrary, they Formative Experience championed greater governmental intervention in American life and constmcted a version of Born in Maine in 1833 and educated at constitutional history serviceable for their pur­ Bowdoin College, Fuller received most of his pose.4 legal education through law firm apprentice­ Revisionist scholarship has increasingly ship. Like so many New Englanders of his gen­ challenged the once standard account of late eration, Fuller gravitated westward. He settled nineteenth century jurisprudence espoused by in Chicago, and over time established a thriv­ Progressives and New Dealers.5 What has ing law practice focused on appellate advo­ emerged is a more balanced portrait of the work cacy. Fuller increasingly represented banks, of the Supreme Court at the turn of the century. railroads, and members of the Chicago busi­ Drawing upon this new literature, this article ness elite, such as Marshall Field. Despite aims to take a fresh look at Fuller's leadership this orientation toward a corporate practice, he of the Court and to analyze the jurisprudence valued professional independence. Fuller con-

Fuller became politically active in the Democra tic Party in Chicago and supported StephenA. Douglas's compromise solu tions to the sectional conflict (Douglas is pictured on a Presidential campaign poster). With his fellow Democrats, Fuller sharply criticized the Lincoln administration, caning the Emancipation Proclamation an unconstitutional exercise of presidential power. MELVILLE W. FULLER 37 tinued to litigate on behalf of individuals and Notwithstanding the constant political municipal bodies, and steadfastly declined of­ wrangling, Fuller was able to gain the respect fers to become the regular counsel for any busi­ of political This to reach ness. His extensive and diversified practice reached many fields of law, ranging from real property and torts to commercial law and con­ tractuallitigation. Upon Fuller's appointment to the Supreme Court, Harper s Weekly declared that he "goes to the bench with probably a wider experience of all branches of the law than has been enjoyed at the bar by any member of the Court."" The legal principles applied by Fuller and his colleagues had deep roots in Jacksonian Democracy, with its stress on equal rights and its aversion to class legislation. Promoting mar­ ket freedom, the Jacksonians attacked state­ conferred monopolies, and laws that gave spe­ cial privileges to particular groups. Turn-of­ government, a the-century jurists drew upon Jacksonian ide­ The President was impressed ology as they sought to protect economic lib­ abili ty, and the two began a fre­ erty and distinguish between appropriate regu­ correspondence. Cleveland consulted lation for the public welfare and illegitimate laws Fuller on the distribution of political patronage advancing special interests.' The importance in Illinois. In 1885 Cleveland offered to name of the Jacksonian ideology in shaping consti­ Fuller chairman of the Civil Service Commis­ tutionallaw applied with special force to Fuller. sion. Civil service reform was a major goal of Reared in the Jacksonian political tradition, the Cleveland administration, and the chainnan­ Fuller remained true to the political convictions ship was a powerful position. Citing family forged in his youth. He frequently espoused needs, Fuller refused the appointment. A year the maxims of strict construction and states' later Cleveland tried again, asking Fuller to ac­ rights. Indeed, this commitment to limited gov­ cept the post of Solicitor General. Despite ernment would be the hallmark of Fuller's con­ Fuller's repeated rejection offederal positions, stitutional jurisprudence. "Paternalism," he he and Cleveland remained fast friends. When observed in 1880, "with its constant intermed­ Chief Justice Morrison R. Waite died in March dling with individual freedom, has no place in a of 1888, Cleveland resolved to select a candi­ system which rests for its strength upon the date from Illinois who shared his conservative self-reliant energies of the people."B economic philosophy. Given their past asso­ Soon after his move to Chicago, Fuller be­ ciation, it was not surprising that he settled on came active in Democratic Party affa irs. In the Fuller. The future Chief was initially reluctant late 1850s he supported Stephen A. Douglas to accept the nomination and requested time to and favored a compromise solution to the loom­ consider. But Cleveland declined to wait and ing sectional crisis. Although Fuller backed sent Fuller's name to the Senate. military action to defeat secession, he was a Since Fuller was not well-known nationally, sharp critic of the Lincoln administration. the public reaction to his nomination was muted, Elected to the Illinois House of Representatives if guardedly favorable. Some opposition to in 1862, Fuller found himself quickly enveloped confirmation emerged in the Senate. A group in controversy. He joined fellow Democrats in of Republican Senators expressed concern a series of resolutions assailing Lincoln's poli­ over Fuller's political activities during the Civil cies, and denounced the Emancipation Procla­ War. Others hoped to delay confirmation until mation as an unconstitutional exercise of pres i­ after the upcoming presidential election. A dential power. bipartisan coalition, however, insisted on a vote, 38 JOURNAL 1998, VOL. I

CQlnOosltlOl of the Court changed fre­ tenure. Eleven new Jus­ five Presidents joined the was Chief. Yet Fuller main­ relations with the incom­ especially close to David W. Peckham. Fuller also

indeed Holmes was one of with Fuller in de­ eriod of joint ser­ er, Fuller harnessed was impr him sevetalhigh4e\{el Solicitor General-before sending the Chicago lawyer's name to the Senate for confirma­ tion as Chief Justice without waiting for Fuller's consent. and Fuller was confirmed by a margin of forty­ one to twenty.9 Cleveland's esteem for Fuller, incidentally, was enduring. The two corresponded regu­ larly for years. IO When re-elected to a second tenn as President in 1892, Cleveland offered Fuller the position of Secretary of State. Fuller declined, explaining that the "surrender of the highest judicial office in the world for a political position, even though so eminent, would tend to detract from the dignity and weight of the tribunal."1 I

Fuller as Chief Justice

The new Chief Justice confronted a variety of daunting tasks. Because Fuller has univer­ sally received high ma.rks as ajudicial adminis­ trator, we should give attention to this facet of his tenure. Fuller first had to establish himself with the sitting Justices. Although he had voted argued before the Supreme Court on several with the majority, he assigned most of the opin­ occasions, Fuller was hardly a known quantity ions during his service on the Court. Through- MELVILLE W. FULLER 39

Fuller had to prove himself to his Brethren because, although he had argued several times before the Court, he was not well known to them and some doubted his capabilities. He was successful at gaining the independent­ minded Associate Justices' respect, and even managed to foster a harmonious working relation­ ship among them. To this end, he inaugurated the practice of having all the Justices shake hands with one another before each Conference. out the Court's history, many Chief Justices were not always obvious, but I know how seri­ have chosen to write the decision in cases of ous and solid they were and how remote was greatest interest. Early in his tenure Fuller kept any partiality from his choice."'s some of the major opinions, such as Pollock An indefatigable worker, Fuller shouldered and E. C. Knight Co., for himself. Thereafter, far more than his share of opinions for the Court. at considerable cost to his historical reputa­ He authored 840 majority opinions, writing for tion, he generally assigned significant cases to the Court more often than any other Justice others. during his period of service. According to one The use of assignment power by the Chief calculation, Fuller was the fifth most produc­ has sometimes generated resentment among his tive opinion-writer in the Court's history. 16 Be­ Brethren. Fuller largely avoided this problem cause he assigned most major cases to others, by following an eminently fair and evenhanded Fuller tended to write unglamorous opinions approach to assignment decisions. There is no dealing with jurisdictional and procedural mat­ evidence that he used assignments to reward ters or commercial transactions. Few of these or punish colleagues for their views. Such a rulings had a long-term impact on the evolu­ policy would have undermined Fuller's effort tion oflegal doctrine. Moreover, Fuller's judi­ to foster good will among the Justices. "In the cial opinions suffered from his verbose and dif­ assignment of decisions to the different fuse style of writing. 17 Yet Fuller's influence judges," Holmes later observed, "his grounds cannot be measured only by the opinions he 40 JOURNAL 1998, VOL. I

underwrite the Wben the fair an tnjuncti{ln to bait such operations as a trQ,dit'!onal equitable principles, Fuller denied the injunction on !1rj'jIlmI~ th .. t injury to the government. Showu above is tbe Women's Pavillion at the Exposition.

authored. Reflecting the prevalent commitment the Evarts Act of 1891 . Circuit Court duties to limited government and the free market, he also claimed a share of Fuller 's time. Under the led the Supreme Court toward greater protec­ Judiciary Act of 1789, Supreme Court Justices tion of property ownership and open access to were required to hold circuit court in their re­ interstate commerce. spective circuits. Between 1888 and 189 I, there­ When Fuller became Chief, he inherited a fore, Fuller spent much of each summer presid­ heavy backlog of appellate cases and an anti­ ing over trials and adjudicating largely routine quated federal court stmcture. Spurred by in­ matters of private law in the Fourth and Sev­ dustrial growth, numerous patent cases, and enth Circuit Courts of Appeals. After passage the impact of the Fourteenth Amendment, the of the Evarts Act, Fuller as circuit justice par­ workload of the Supreme Court increased ticipated in a number of decisions rendered by steadily in the Gilded There was a three the Fourth and Seventh Circuit. At the least, year delay in the disposition of cases. Fuller Fuller's experience demonstrates that active cir­ had long favored the creation of intermediate cuit court responsibilities for the Justices did courts of appeal to ease the burden of the Su­ not end with the Evarts Act but continued into preme Court, and as Chief Justice he actively the early twentieth century. supported the reform efforts that culminated in Fuller's most important mling as circuit jus- MELVILLE W. FULLER 41 tice arose from the controversy over opening dom largely in economic terms. To nineteenth the 1893 World's Columbian Exposition in century Americans, the acquisition and enjoy­ Chicago on Sundays. Congress had appropri ment of property was among the most vital of ated funds to help underwrite the costs of the liberty interests. Moreover, constitutional fair on express condition that the exhibition not thought emphasized that security of private be open on Sundays. When the fair directors property was a vital prerequisite for the exer­ voted to open on that day, the federal govern­ cise of other individual liberties, such as free ment sought an injunction to halt such opera­ speech. "It should never be forgotten," Jus­ tions as a breach of the condition. Relying on tice Field observed in 1890, "that protection to traditional equitable principles, Fuller denied property and to persons cannot be separated. the injunction on the ground that there was no Where property is insecure, the rights of per­ proof of irreparable injury to the government. sons are unsafe. Protection to the one goes Although phrased in terms of equitable relief, with protection to the other; and there can be the decision underscores Fuller's lack of sym­ neither prosperity nor progress where either is pathy with Sunday closing laws. It can per­ uncertain."22 The Fuller Court aggressively de­ haps also be viewed as a step toward a new un­ fended private property and contractual free­ derstanding about the place of religion in a dom as a means to limit the reach of govern­ changing and more diverse society. IS ment and thereby safeguard liberty. Hence, the Other challenges, too, tested Fuller's ad- hallmark of Fuller era jurisprudence was an em­ ministrative ability. he helped to brace of economic liberty, not some dark scheme orchestrate the 1897 Field, to serve corporate interests. Even a critic of whose declining health had been an increasing Fuller's constitutional outlook conceded: "Lib­ source of worry for the Justices. At times the erty was the guiding ideal of the Fuller Court, varied demands of the chief justiceship almost the notion that gave unity and coherence to its overwhelmed Fuller. "I am so weary that I can many endeavors."23 hardly sit up," he told the Court's Reporter in In championing economic liberty, the Fuller May of 1890. 19 Yet Fuller proved adept at man­ Court drew upon the time-honored tradition of aging the Court's internal relations, keeping har­ property-conscious constitutionalism. Prop­ monious relations among the Justices, repre­ erty ownership and political liberty had long senting the Court in its dealings with other been linked in Anglo-American legal thought. 24 branches of government, and guiding the Court Historians have given inadequate attention to toward a more active role in American life. In the close connection between the Fuller years sum, he made a significant contribution to the and the constitutional principles espoused by modern definition ofthe office ofChief Justice. the Framers of the Constitution. As Morton J. The record fully justifies Felix Frankfurter's later Horwitz noted, "by seeking to stigmatize the observation that "there never was a better ad­ Lochner era, Progressive historians lost sight ministrator on the Court than Fuller."lo of the basic continuity in American constitu­ tional history before the New DeaL"2.1 Jennifer Jurisprudence ofthe Fuller Court Nedelsky has similarly observed that "the no­ tion that property and contract were essential We should now turn to assess the jurispru­ ingredients of the liberty the Constitution was denceofthe Fuller era, and seek to uncover the to protect, was common to Madison, Marshall, premises that informed the exercise ofjudicial and the twentieth century advocates oflaissez­ power. The constitutional foundation of the faire."26 Viewed in historical context, the work Fuller Court was the preservation of individual of the Fuller Court could best be understood as liberty. "The utmost possible liberty to the in­ a fulfillment of the property-conscious attitudes dividual, and the fullest possible protection to that shaped the constitution-making process him and his property," Justice Brewer asserted in 1787. in 1892, "is both the limitation and duty ofgov­ The Fuller Court's solicitude for the rights emrnent."ll In contrast to modern liberalism, of property owners stemmed from utilitarian however, Fuller and his colleagues defined free- grounds as well as philosophical imperatives. 42 JOURNAL 1998, VOL. I

A steady flow of investment capital was vital were most state business regulations sustained, to finance economic development. Associat­ but the Justices strived to maintain a balance ing security of private property with industrial between federal and state authority over the growth, the Court therefore persistently labored economy. This is perhaps best illustrated by to protect capital formation. In the railroad rate Fuller's opinion in E. C. Knight Co. , which dis­ cases, for instance, the Justices stressed the tinguished between commerce and manufac­ importance of private capital, and expressed turing and restricted the reach of the Sherman concern that stringent state controls would pro­ Act. Fuller explained: duce such an insufficient return as to discour­ age investmentY Excessive regulation would Slight reflection will show that if the na­ consequently not only destroy the value of ex­ tional power extends to all contracts and isting property but inhibit new investment es­ combinations of manufacture, agricul­ sential for development. Justice Peckham, writ­ ture, mining, and other productive in­ ing for the Court in the landmark case of Ex dustries, whose ultimate result may af­ Parte Young, pointedly observed: fect external commerce, comparatively little of business operations and affairs Over eleven thousand millions of dol ­ would be left for state controlY lars ... are invested in railroad property, owned by many hundreds of people who To Fuller's mind, the prospect of plenary fed­ are scattered over the whole country eral control over commerce threatened the place from ocean to ocean, and they are en­ of the states in the constitutional system, and titled to equal protection from the laws was more menacing than the supposed danger and from the courts, with the owners of of business consolidations. The states' rights all other kinds of property.... "28 theme was also prominent in Pollock. Fuller viewed the Direct Tax Clause as one of the com­ This concern with capital formation also promises at the Constitutional Convention de­ played a role in the Pollock decisions invali­ signed to secure dual government] 3 If this dating the 1894 income tax. Critics pictured the "rule of protection could be frittered away," controversial levy as an attack on wealth, a view Fuller warned, "one of the great landmarks de­ shared by Justice Field when he declared: "The fining the boundary between the Nation and present assault on capital is but the begin­ the States of which it is composed, would have ning."29 As historian Morton Keller has per­ disappeared, and with it one of the bulwarks of ceptively noted with respect to late nineteenth private rights and private property." 34 In short, century judicial behavior: "an old concern for Fuller employed the Direct Tax Clause to pro­ private rights and individual freedom coexisted tect the role of the states as well as individual with the desire to foster the development of a property owners by curtailing federal taxing national economy."30 power.3S He correctly perceived that the income Although prepared to afford heightened tax would open the door for an expansion of protection to the rights of property owners, the federal power and a fundamental alteration of Fuller Court's pattern of decision-making was federal-state relations. complex and took account of other constitu­ Of course, there was a degree of tension tional values. Foremost among these was a between the Fuller Court's defense of property strong commitment to the federal system. Con­ rights and respect for state autonomy. State sistent with its dedication to a limited federal legislatures, acting under their police power to government, Fuller and his colleagues sought safeguard public health, safety, and morals, to preserve a large measure of autonomy for took the initiative in seeking to harness the new the states. Accordingly, Court tended to economic forces. 3GInevitably, such exercise of defer to state governance of criminal justice, state authority entrenched on the traditional race relations, and public moralsY prerogatives of property owners, stimulating a Even in the economic area, the Fuller Court steady stream of legal challenges. The quan­ saw an important role for the states. Not only dary inherent in protecting property owners MELVILLE W. FULLER 43

The autbor makes tbe case tbat tbe Fuller Court was in accord with the prevailing political ideology in its decisionmaking. Indeed, even the In Re Debs decision was greeted with approval by tbe public, which, apart from trade unionists, was hardly clamoring for a vast social welfare network. Pictured is Eugene Debs, the litigant in that suit, who, as president of the America n Railway Union, insti­ tuted a policy of boycotting railroads that used Pullman cars. The intent was to get the Pullman company to increase its workers' pay. while simultaneously upholding states' rights The conflicting pull of support for private was strikingly evident in Fuller Court review of property rights and a high regard for federali sm state-imposed railroad rates and state regula­ also infonned the Fuller Court's takings juris­ tions that burdened interstate commerce. Al­ prudence. During Fuller's tenure, the Supreme though recognizing that railroads were subject Court first had an opportunity to address in a to public control, the Fuller Court fashioned systematic manner the Takings Clause and the fair value rule as a restraint on state rate­ brought a new vitality to this provision. In a making authority.37 Similarly, Fuller and his col­ number of important rulings, the Justices leagues steadfastly championed the national strengthened the Takings Clause as a guaran­ market for goods. To this end, the Fuller Court tee of individual rights against arbitrary gov­ closely scrutinized state laws that prevented enunental power.40 Stressing that the Takings the shipment of certain products across state Clause was an integral part of the Bill of Rights, lines. This commitment to free trade among the a unanimous Court in Monongahela Naviga­ states led the Justices to wield forcefully the tion Company declared that the just compen­ donnant Commerce Power to remove state ob­ sation requirement "prevents the public from stacles to national economic life.38 Indeed, to loading upon one individual more than his just the annoyance of prohibition advocates, the share of the burdens of govenunent, and says Fuller Court maintained that freedom of inter­ that when he surrenders to the public some­ state commerce encompassed the right to ship thing more and different from that which is ex­ liquor into each state.39 acted from other members of the public, a full 44 JOURNAL 1998, VOL. I

and just equivalent shall be returned to him. "41 nent domain. The Justices generally deferred The determination of just compensation is of to state decisions as to what should be consid­ critical importance, however, because payment ered public use. Consequently, the Court did of an inadequate compensation undermines the not treat the public use requirement as a mean­ protective function of the Takings Clause. ingful restraint on the use of eminent domain. Accordingly, in Monongahela Navigation the In a line of cases, for instance, the Fuller Court Fuller Court insisted that the ascertainment of sustained the acquisition of private property the amount of compensation was a judicial, not for purposes of irrigation or mining, even ifthe a legislative, function. The Justices then ruled direct benefit was limited to a handful of indi­ that compensation "must be a full and perfect viduals.45 equivalent for the property taken" and that the value ofland should be determined by its pro­ Place in History ductiveness.42 Perhaps the most important contribution of From the foundation of the United States, the Fuller Court to takings jurisprudence was economic liberty was treated as an essential the extension ofthe just compensation require­ element of constitutionalism. Indeed, federal ment to the states. This step marked the initial courts had long afforded protection to the prop­ acceptance of the view that the Due Process erty rights of individuals.46 What, then, ac­ Clause of the Fourteenth Amendment made cer­ counts for the unique place of the Fuller era in tain fundamental provisions ofthe Bill of Rights Supreme Court history? The answer that applicable to state and local government. In emerges is that Fuller and his colleagues en­ the seminal case of Chicago, Burlington and forced entrepreneurial freedom with heightened Quincy Railroad Company v. Chicago, the vigor and daring. To this end, they strength­ Justices held that compensation for private ened substantive due process, crafted the lib­ property taken for public use was an essen­ erty of contract doctrine, animated takings ju­ tial element of due process as guaranteed by risprudence, and aggressively reviewed state the Fourteenth Amendment.43 The city con­ and federal economic legislation. tended that the amount of compensation to be Not surprisingly, this burst of judicial ac­ awarded the railroad for the construction of a tivism aroused opposition. Populists, public street across land owned by the carrier Progressives, and historians who reflect their was entirely a matter oflocallaw and raised no attitudes, have disparaged the work of the Fuller federal question. Court and maintained that any invocation of Writing for the Court, Justice John Marshall liberty was simply a cover for favoritism to busi­ Harlan declared that the mere form of eminent ness interests.47 Adopting a conspiratorial tone, domain proceedings did not satisfY due pro­ critics alleged that the Justices were thwarting cess unless provision was made for adequate popular will. Since this dark legend has col­ compensation. "Due protection of the rights of ored historical accounts of the Fuller Court, it property," he pointed out, "has been regarded seems appropriate to consider various factors as a vital principle of republican institutions."44 that buttress alternative evaluations. I wish to The opinion rested on the premise that the ri ght develop three points that may facilitate a better of compensation was a fundamental right in­ understanding of Fuller era jurisprudence. herent in free government. By virtue of Chi­ In the first place, one should view the work cago, Burlington, the Due Process Clause ofthe Fuller Court in broad perspective. It bears operated as a just compensation requirement emphasis that the Supreme Court under Fuller imposed on the states. upheld far more economic regulations than it While moving to establish a vigorous tak­ struck down. The Justices in fact demonstrated ings jurisprudence, Fuller and his colleagues a considerable tolerance for legislation protect­ sought to strike a balance between national ing public welfare and safety against harmful constitutional norms and state autonomy. This activities, as well as for measures enhancing was particularly evident with respect to the public morals. A review of Fuller Court deci­ "public use" requirement for the exercise ofemi- sions does not support an interpretation of a MELVILLE W. FULLER 45

Bench firmly resolved to frustrate all legislative freedom. 55 President Cleveland, Fuller's initiatives.48 friend, gave a classic formulation to this sen­ To be sure, the Justices carefully scrutinized timent in 1887: " ... the lesson should be both the goals allegedly served by government constantly enforced that though the people action as well as the reasonableness of the support the Government, the Government means employed to achieve the announced end. should not support the people."56 That the They declined to accept the ostensible purpose Fuller Court was in accord with the prevailing of the legislation at face value and indepen­ political ideology was made clear by the presi­ dently weighed the evidence as to whether a dential election of 1896. William Jennings regulatory measure was a valid exercise of the Bryant assailed the Fuller Court, urged wealth police power. In particular, the Fuller Court redistribution through an income tax, and called treated liberty of contract as the constitutional for increased governmental intervention in the norm and required states to justifY laws that economy,57 Americans decisively rejected this infringed this right. Americans of ·the nine­ Populist program in 1896 and again in 1900. It teenth century attached a high value to con­ is entirely fanciful to posit that the general pub­ tractual freedom.49 It was therefore an easy step lic in Fuller's day was yearning for big govern­ for courts to conclude that the right to enter ment and vast social welfare schemes. contracts and pursue lawful occupations de­ A study of the popular reaction to leading served special protection by the judiciary. decisions of the Fuller Court reinforces this This leads us to the much maligned Lochner conclusion. Aside from trade unionists, Debs decision in which the Court invoked the li berty was well received by most segments of public of contract doctrine to invalidate a statute lim­ opinion.58 The Pollock rulings surely aroused iting the hours of work in bakeries.50 One of the hostility in some quarters, but the Supreme Court did

colleagues championed values broadly shared In short, the Fuller Court, despite its activ­ by turn-of-the-century Americans. As Rob­ ist bent, generally mirrored the attitudes of ert Higgs has pointed out, most Americans American society as a whole. As one scholar in the 1890s were dedicated to limited gov­ has observed, "Lochner era jurists realized the ernment, private property, and contractual importance of public opinion in the evolution 46 JOURNAL 1998, VOL. I of constitutional law. In propounding laissez­ additional problems.66 Although couched in faire constitutionalism, they believed public terms of general benefit, much of the regula­ opinion was on their side. "64 tory legislation was enacted at the behest of Thirdly, historians would do well to look special interest groups. In fact, the Fuller with a skeptical eye at the Progressive legisla­ Court's skepticism about regulatory solutions tive program. Too often the topic of property and dedication to economic liberty may well rights at the turn of the century has been pre­ have promoted the long-term public interest. sented within the simplistic context of a con­ flict between the public interest and ajudiciary Fuller's Legacy dedicated to big business. But it unfairly loads the historical deck to presume the benign pur­ This call for a reconsideration of Melville pose and effect of so-callcd reform legislation. W. Fuller does not suggest uncritical celebra­ The actual picture is much less tidy. There is tion. Time has erased many of the achieve­ room to doubt the efficacy of many of the regu­ ments ofthe Fuller Court. We as a nation have lations introduced by the Progressives. The travelled far from a constitutional order based Progressive faith in management of the on the principles oflimited central government, economy by experts along scientific lines seems states' rights, and respect for individual prop­ naive and almost quaint to modern eyes. Histo­ erty ownership. On the contrary, judicial and rian Herbert Hovenkamp has aptly observed: scholarly opinion has embraced a greatly ex­ "Government regulation proved to be one of panded role for government in American life. the great embarrassments of Progressive legal Property rights, the cornerstone of Fuller's Jib-

Chief Justice Fuller (bottom, center) was ces David J. Brewer (bottom, second from right) and Rufus W. Peckham (top, second from left). Fuller also formed a personal bond with Oliver Wendell Holmes, Jr., and, indeed, Holmes (top, left) was one of the Justices most in accord with Fuller in deciding cases during their period of joint service. MELVILLE W. FULLER 47 nomic decisionmaking. Consequently, since the Endnotes New Deal period the claims of property owners have been often ignored or belittled, in marked 1 Much of the material for this article has been drawn from my book, Tbe Chief Justiceship of Melville contrast to judicial solicitude for an expanding W. f'uller, 1888-1910 (Columbia, S.c.. University of array of noneconomic rights, Further, an South Carolina Press, 1995). r am grateful to Jon w, egalitarian emphasis on the plight of outsid­ Bruce, Barry Friedman, Howard A. Hood, and Nicho­ ers gradually replaced the Fuller Court's dedi­ las Zeppos for valuable comments. 2 Owen M. Fiss, Troubled Beginnings of the Mod­ cation to economic liberty as the principal con­ ern State, 1888-19] 0 (New York; Macmillan Pub­ stitutional value. One might well be tempted to lishing,1993), 3. dismiss the Fuller Court as a relic of another 1 /d .. 389-391; Cass R. Sun stein, The Partial Con­ day. stitution (Cambridge, Mass,; Harvard University Press, 1993),45-67. Absent a sea change in attitudes toward 4 See generally Richard Hofstadter, Tbe Progressive government, we are unlikely to witness a fuU­ Historians (New York: Alfred A. Knopf, 1968). scale revival of Fuller's constitutional philoso­ 'E.g., Michael Les Benedict: "Laissez-Faire and Lib­ phy. Nonetheless, I contend that Fuller's ten­ erty: A Re-Evaluation of the Meaning and Origins of Laissez-Fain;; Constitutionalism," .3 Law and History ure as Chief left a lasting imprint on American Review 293 (1985); Charles W. McCurdy, "Justice Field law and society. Fuller and his colleagues were and the Jurisprudence of Government-Business Rela­ more receptive to the new realities of American tions; Some Parameters of Laissez-Faire Constitution­ economic life than many oftheir critics, whose alism, 1863-1897," 61 Journal of American His/OIY 970 (1975); Howard Gillman, The Constitution Be­ values were often rooted in a pre-industrial sieged: The Rise and Demise of Lochner Era Po­ world. envisioned a future based on capi­ lice Powers Jurisprudence (Durham, N.C.: Duke Univer­ talist enterprise and sought, in the main, to en­ sity Press, 1993). courage the new industrial order by safeguard­ 6 Halper S Weekly, May 12, 1888, 340. 7 See Benedict, "Laissez-Faire and Liberty: A Re-Evalu­ ing investment capital and national markets. In ation of the Meaning and Origins of Laissez-Faire so doing, the Fuller Court was swimming with Constitutionalism"; Gillman, Tbe Constitution Be­ the currents of history. It is hardly news that sieged, 33-60; David M. Gold, The Shaping of Nine­ large-scale corporate enterprise has become a teenth-Century Law: John Appleton and Respon­ sible Individualism (New York: Greenwood Press, permanent feature ofAmerican life. Moreover, 1990), 137-141 many Americans remain skeptical about the , Dial. vol. I (1880), 103. virtues of the regulatory state. Current de­ 9 Ely, Tbe Chief Justicesbip of Melville W. Fuller, regulation and tax-cutting initiatives reflect 6-24 , 10 "Correspondence of President Cleveland to Melville continuing interest in free-market ordering. Re­ W, Fuller," 3 American Scholar 245 (1934). cently, the Supreme Court has gingerly reaf­ " Fuller to Cleveland, January 2, 1893, /d. at 248. firmed the notion that the federal government " Paul Kens, Justice Stephen Field: Shaping Lib­ does not possess plenary lawmaking author­ erty from the Gold Rush to the Gilded Age (Lawrence, KS: University Press of Kansas, 1997), ity.67 In short, the jurisprudence of the Fuller 260. Court was a better forecast of the future than " G. Edward White, Justice Oliver Wendell historians have recognized. Holmes: Law and the Inner Self (New York: Ox­ Even more striking has been the return of ford University Press, 1993), 315-318. 14 Charles Warren, The Supreme Court in United property rights to the constitutional agenda. States History, rev. ed. (Boston: Little, Brown, 1926), In language reminiscent of the Fuller era, ju­ vol. 2, 721. rists and scholars have recently joined in a lively " As quoted in Willard L. King, Melville Weston and far-ranging debate over the association Fuller: Chief Justice of the United States, 1888- 1910 (New York: Macmillan, 1950, reprint Chicago; between property ownership and a free soci­ University of Chicago Press, 1967), 334 . ety. Indeed, many of the issues addressed 16 Jd., 339. by the Fuller Court have reemerged as part of 17 Felix Frankfurter, "Chief Justices I Have Known," the constitutional dialogue.69 Fuller, who, with 39 Virginia Law Review 883, 889 (1953) (observing that Fuller was "not an opinion writer whom you read the Framers of the Constitution, believed that for literary enjoyment"), property and liberty were interdependent, IS Ely, The Chief Justiceship of Melville W. Fuller, would be right at home. 45-47. 19 As quoted in King, Melville Weston Fuller, 149. 48 JOURNAL 1998, VOL. I

20 Felix Frankfurter, "Chief Justices I Have Known," 39 "Richard F Hamm, Shaping the Eighteenth Amend­ Virginia Law Review 883,890 (1953). ment: Temperance Reform, Legal Culture, and the 21 Budd Y. New York, 143 U.S. 517,551 (1892) (Brewer, Polity, 1880-1920 (Chapel Hill: University of North Caro­ J.,dissenting). lina Press, (995),68-70, 88-91, 176-181. 22 Stephen 1. Field, "The Centenary of the Supreme 40 James W. Ely, Jr., "The Fuller Court and Takings Court," February 4, 1890, reprinted in 13 4 U.S. 729, Jurisprudence," 1996 Journal of Supreme Court His- 745. 101Y, vol. II, 120. 23 Fiss, Troubled Beginnings of the Modern State, 41 Monongahela Navigation Company v. Uniled States, 389. 148 U.S. 312, 325 (1893). 24 See genera ll y, James W. Ely, Jr., The Guardian of 42/d., at 326. Every Other Right: A Constitutional History of 43 Chicago. Burlington and Quincy Railroad Com­ Property Rights, 2nd ed. (New York: Oxford Uni­ pany Y. Chicago, 166 U.S. 226 (1897). versity Press, 1998). 44 Id., at 235-236. 25 Morton J. Horwitz, The Transformation of Ameri­ 45 Ely, "The Fuller Court and Takings Jurisprudence," can Law, 1870-1960 (New York: Oxford University 127-129. Press, 1992), 7. See also Gillman, The Constitu­ 46 See Charles F Hobson, The Great Chief Justice: tion Besieged, 199. John Marshall and the Rule of Law (Lawrence, 26 Jennifer Nedelsky, Private Property and the Lim­ KS: University Press of Kansas, (996), 72-110 (ana­ its of American Constitutionalism: The lyzing the key place of contract and property rights in Madisonian Framework and Its Legacy (Chicago: Marshall's jurisprudence). University of Chicago Press, 1990), 228. 47 Eg., Bernard Schwartz, A History of the Supreme 27 Eg, Reagan v. Farmers' Loan and Trust Co., 362, Court (New York: Oxford University Press, 1993), 412,410 (1894). 174-202; Russell W. Galloway, Justice for All? The "Ex Parte Young, 209 U.S. 123, 165 (1908). Rich and Poor in Supreme Court History, 1790- 29 Pollock v. Farmers' Loan and Trust Company, 157 1990 (Durham, NC: Carolina Academic Press, 1991), U.S. 429, 607 ( 1895) (Field, J., concurring). 77-89; Arnold M. Paul, Conservative Crisis and 30 Morton Keller, Affairs of State: Public Life in the Rule of Law: Attitudes of Bar and Bench, Late Nineteenth Century America (Cambridge, 1887-1895 (Ithaca, NY: Cornell University Press, Mass.: Harvard University Press, 1977), 370. 1960); Aviam Soifer, "The Paradox of Paternalism 31 Ely, The Chief Justiceship of Melville W. Fuller, and Laissez-Faire Constitutionalism: United States Su­ 150-171. preme Court, 1888-1921 ," 5 Law and History Review 32 United States v. Ee. Knight Company, 156 U.S. I, 249, 250-252 (1987) . 16 (1895). ." Mary Cornelia Porter, "That Commerce Shall Be 33 Article I, section 9 of the Constitution provides: Free: A New Look at the Old Laissez-Faire Court," "No Capitation, or other direct, Tax shall be laid, 1976 Supreme Court Review 13 5, 140- 143. See also unless in Proportion to the Census or Enumeration Michael 1. Phillips, "How Many Times Was Loehner­ herein before directed to be taken." Era Substantive Due Process Effective?," 48 Mercer 34 Pollock v. Farmers' Loan and Trust Co mpany, 157 Law Review 1049 (I997). U.S. 429, 583 (1895) . 49 James Willard Hurst, Law and the Conditions of 35 Robert Stan le y, Dimensions of Law in the Ser­ Freedom in the Nineteenth-Century United vice of Order: Origins of the Federal Income States (Madison : University of Wisconsin Press, Tax, 1861-1913 (New York: Oxford University Press, 1956), 10. 1993), 156-165 (discussing states' rights component 50 Lochner Y. New Yo rk, 198 U.S. 45 (1905). See gen­ of Fuller's opinions). The income tax was vlJ lnerable erally Paul Kens, Power and Reform Politics: The on another point as well. A levy on incomes breached Anatomy of Lochner v. New York (Lawrence, KS : the widely accepted constitutional norm that taxes University Press of Kansas, 1990). should be equal and uniform. Horwitz, The Transfor­ 51 E.g., Cass R. Sunstein, "'Lochner's Legacy," 87 Co­ mation of American Law, 20-27. For Fuller's role in lu mbia Law Review 873 (1987); Mary Cornelia Por­ the Pollock cases, see Ely, The Chief Justiceship of ter, "Lochner and Company: Revisionism Revisited," Melville W. Fuller, 118-123. in Ellen Frankel Paul and Howard Dickman, eds., Lib­ 36 Kermit L Hall, The Magic Mirror: Law in Ameri­ erty, Property, and Government: Constitutional can History (New York: Oxford University Press, Interpretation Before the New Deal (Albany: State 1989), 197-202. University of New York Press, 1989),11-38. 37See generally James W. Ely, Jr., "The Railroad Ques­ 52 Bruce Ackerman, "Levels of Generality in Constitu­ tion Revisited: Chicago, Milwaukee & St. Paul Rai/­ tional Interpretation," 59 University of Chicago Law way v. Minnesota and Constitutional Limits on State Review, 317, 339-340 (1992). Regulations," 12 Greal Plains Quarterly 121 (1992); 53 Eg., Bernard H. Siegan, '''Rehabilitating Lochner," Richard C. Cortner, The Iron Horse and the Con­ 22 San Diego Law Review 453 (1985). stitution: The Railroads and the Transforma­ 54 See Melvin L Urofsky, "Myth and Reality: The Su­ tion of the Fourteenth Amendment (Westport, preme Court and Protective Legislation in the Pro­ CT: Greenwood Press, 1993). gressive Era," Yearbook 1983 Supreme Court Historical 38 Ely, The Chief Justiceship of Melville W. Fuller, 140- Society 53. 148. 55 Robert Higgs, Crisis and Leviathan: Critical Epi- MELVILLE W. FULLER 49 sodes in the Growth of American Government (New South, the Supreme Court, and Race Relations, 1890- York: Oxford University Press, 1987),79-105. 1965," in Larry 1. Griffin and Don H. Doyle, eds., Tbe ,. Veto Message, "Distribution of Seeds," February 16, South as an American Problem (University of Georgia 1887, Congressional Record, 49th Con g., 2nd Ses­ Press, (995), 126, 127-/33 (discussing intellectual climate sion, vol. 18, pt. II, 1875. and political circumstances which fue led the segregation­ 57 Alan Furman Westin, "The Supreme Court, the Popu­ ist tide). list Movement and the Campaign of 1896," 15 Jour­ 64 Stephen A. Siegel, "Lochner Era Jurisprudence and nal of Politics 3, 30-39 (1953). the American Constitutional Tradition," 70 North " See William G. Ross, A Muted Fury: Populists, Carolina Law Review, I, 108 (1991). Progressives, and Labor Unions Confront the .5 Herbert Hovenkamp, "The Mind and Heart of Pro­ Courts, 1890-1937 (Princeton, N.J.: Princeton Uni­ gressive Legal Thought," 81 Iowa Law Review 149, versity Press, 1994 ), 28, (noting that the "reaction 157 (1995). against the decision in Debs was primarily confined to 66 It has been argued, for example, that Progressive era the ranks of trade unionists"). railroad legislation was ill-considered and severely hurt 59 "The Last of the Income Tax," Washington Post, the rail industry. Albro Martin, Enterprise Denied: May 2 1, 1895. Indeed, the Post opined that "the Origins of tbe Decline of American Railroads, American people will ho ld in reverent and grateful 1897-1917 (New York: Columbia University Press, memory forever" the names of Fuller and the other 1971). Similarly, historians have become increasingly members of the majority. skeptical about the efficacy of Progressive measures 60 The Sixteenth Amendment, authorizing an income to curb trusts, and the Progressive confidence in scien­ tax, was not ratified until 1913. W. Elliot Brownlee, tific expertise to resolve social and economic prob­ Federal Taxation in America: A Short History lems. Higgs, Crisis and Leviathan, 106-122. (Cambridge: Cambridge University Press, 1996), 41- 6, United States v. Lopez, 514 U.S.549 (l995); Printz 44; Morton Keller, Regulating a New Economy: v. United States, 117 S.C!. 2365 (1997). Public Policy and Economic Cbange in America, ., E.g., Richard A. Epstein, Takings: Private Prop­ 1900-1933 (Cambridge, MA: Harvard University erty and the Power of Eminent Domain (Cam­ Press, 1990) 215-217. bridge, MA, Harvard University Press, 1985); Bernard 6' Loren P. Beth, Tbe Development of tbe Ameri­ H. Siegan, Economic Liberties and the Constitu­ can Constitution, 1877-1917 (New York: Harper & tion (Chicago: University of Chicago Press, 1980); Row, (971), 42. Carol M. Rose, "Property as the Keystone Right?," 62 Kens, Judicial Power and Reform Politics, 128- 71 Notre Dame Law Review 329-366 (1996) . 129. • 9 Fiss, Troubled Beginnings of tbe Modern State, 63 Charles A. Lofgren, The Plessy Case: A LegaJ­ 394-395 (arguing that the Rehnquist Court, like the Historical Interpretation (New York: Oxford Uni­ Fuller Court, assigns a higher priority to liberty versity Press, 1987), 196-198 (noting that Plessy "embod­ than equality, and views liberty in terms of limited ied conventional wisdom"). See also James W. Ely, Jr., "The government. Judicial Management and Judicial Disinterest: The Achievements and Perils of Chief Justice William Howard Taft Robert Post

William Howard Taft holds the significant observe that "Few public men have evoked such distinction of being the only person in the his­ spontaneous and warm affection from the pub­ tory of the nation to preside over two branches lic as has Taft .... He is a dear man-~a true of the federal government. He was President human."4 from 1909 to 1913, and he was Chief Justice of This was a striking tribute to a man who the United States from 1921 to 1930. 1 had only eighteen years before been crushingly This achievement ought to have secured repudiated. Caught between Theodore Taft a prominent position within the history of Roosevelt's New Nationalism and Woodrow the Court. Yet Taft has drifted into almost com­ Wilson's New Freedom, Taft was blasted as a plete professional eclipse. Although familiar reactionary, and managed to obtain only a Im­ to specialists in legal history, Taft is no more mitiating eight electoral votes in his 1912 cam­ known to the average lawyer or law student paign for reelection to the presidency. Taft took than are Chief Justices White, Fuller, or Waite. defeat graciously, however, and he quickly be­ Taft's contemporary obscurity is remark­ came, in the famous phrase ofjournalist George able. When Taft died on March 8, 1930, the Harvey, "our worst licked and best loved Presi­ nation convulsed in an overpowering and spon­ dent."5 Although Taft had been known as the taneous wave of mourning. He was widely char­ father of the labor injunction since his days as acterized as "the most beloved of Americans,"2 an Ohio state court judge, he mollified orga­ and hailed by observers like Augustus Hand, nized labor during World War I by assuming then a federal district Judge in New York, as the joint chainnanship (with Frank P. Walsh) of "the greatest figure as Chief Justice since John the National War Labor Board. The Board Marshall."3 Even Felix Frankfurter, certainly no shocked industrial leaders not only by explic­ admirer of Taft's jurisprudence, was moved to itly recognizing the right of American workers WILLIAM HOWARD TAFT 51

The administrative responsibilities of the chief justiceship became apparent to William H. Taft quickly after taking the oath of office on Jnly 12. Two weeks after being sworn in, Taft learned that Deputy Clerk Henry McKenney had passed away, leaving no one authorized to issue official papers because the Clerk of Court, James D. Maher (pictured), had died on June 3. Told it was unneccessary to consult with the Associate Justices on summer recess, Taft unilaterally decided to appoint Assistant Clerk William R. Stansbury to fill the position. to unionize, but also by pledging official sup­ Taft's resignation: "Outstanding decisions: port for the right of employees to receive a none."ID " living wage."6 Taft also transcended parti­ It is not, of course, that Taft wrote few opin­ san politics by opposing the leaders of his ions. Indeed, from October 1921 through July own party in courageously and publicly 1929, Taft authored 249 opinions for the Court. championing Woodrow Wilson's campaign The prodigious nature of this accomplishment to join the League of Nations. As a result, can be seen by contrasting Taft's output with Harding's nomination of Taft for the Chief that of the four other Justices who served con­ Justiceship in July 1921 was greeted with tinuously during those eight Terms: Holmes "almost unanimous approval."7 It was, as wrote 205 opinions for the Court, Brandeis 193, the The New York Tim es remarked, "a 'come­ McReynolds 172, and Van Devanter only 94. II back' unprecedented in American political It is rather that Taft's opinions were, as Holmes annals. "8 put it, "rather spongy."12 Although Taft We may ask, then, how this man, who, as authored a good many opinions that were, Walter Lippmann's New York World observed, within the context of his time, quite impor­ retired "as Chief Justice with the enduring af­ tant, his writing was seldom crisp or elo­ fection of his countrymen," with a "career" quent. J3 Taft's opinions were often suffused that "has no equal in our history," 9 could have with judicious common sense, which per­ slipped so rapidly into such deep professional versely blurred the expression of any sharp­ oblivion. The short answer, I think, may be edged and therefore memorable jurispruden­ found in Time magazine's pithy assessment of tial v ision. 14 52 JOURNAL 1998, VOL. I

Thus, at the time of Taft's death, even his I supporters recognized that "His name wit! not be ... connected with any The distinct characteristics of the office of sions-as are the names, for Chief Justice'Wereforcibly impressed l;lpon Taft Justice Marshal! and Chief Justice Taney."15 almost immediately after his appoinfment. Instead, Taft's unique achievements were said Harding nominated Taft on June 30, 1921, and to lie in "his success as an administrator of the the Senate confirmed Taft on that same day. At complicated functions and activities of the [Su­ the time Taft was in Montreal, sitting as an arbi­ preme Court] ... and his role as a supervisor of trator to determine the value of the Grand Trunk the Federal courts throughout the country."hl Railway Company, which was being national­ His "lasting monument" was that he "laid the ized by the Canadian government. 21 Taft jour­ foundation for a reorganizatiol1 of the judicial neyed to Washington to take the oath of office administration in this country."11 Friend and at the Department of Justice on July 12. Re­ foe alike acknowledged that Taft "simpHfiedand turning to Canada to his summer home in Murray expedited the processes of the (Supreme] court Bay, Quebec, he was telegraphed on JuLy 30 by and greatly improved the administration ofjus­ Justice Joseph McKenna, the Senior Associ­ tice in thc Federal courts.".s As Charles Evans ate Justice, that Deputy Clerk Henry McKenney Hughes accurately observed, Taft's career "fit­ had passed away.22 tingly culminated in his work as Chief Justice," This posed a serious difficulty for the Court, because the "efficient administration ofjustice because its Clerk, James D. Maher, had died on was, after ali, the dominant interest of his pub­ June 3. At the time, federal law provided that lic Iife."19 the Clerk could only be appointed by the Hughes' observation suggests an impor­ Court.2) Ifthe Clerk died, the Deputy Clerk tant distinction between Associate Justices and could "perform the duties of the clerk in his a Chief Justice. The primary task of Associate name until a clerk is appointed and quali­ Justices is to decide cases and deliver opin­ fied."24 With the death of Deputy Clerk ions, whereas the work of the Chief Justice also McKenney, however, the Clerk's office was, as includes administrative responsibilities for the Assistant Clerk William R. StaMbury tele­ judicial branch of the federal government. graphed Taft, "now without an official head and Taft's current obscurity strongly indicates no one authorized to issue official papers. "25 that enduring professional reputation de­ Yet a Court could not be gathered to appoint a pends upon the former task, but not the lat­ new Clerk. ter. Indeed, when Frankfurter praised Taft Taft promptly returned to Washington to as a great "law reformer" and accorded him meet with McKenna. Telegraphic eonsultation "a place in history ... next to Oliver Ellsworth, with those Associate Justices who could be who originally devised the judicial system,"20 contacted proved unhelpful, which, as Taft he unwittingly revealed what a very small place wrote, "only shows what McKenna assured that is. me that the other members of the Court expect H is, however, a place whose corners I shall me to attend to the executive business of the attempt to illuminate. This paper shall assess Court and not bother them." McKenna im­ Taft's contributions as Chief Justice, rather than pressed the point on his new Chief: "McKenna his general jurisprudence a.'i expressed through said I must realize that the Chief Justiceship his opinions. It is my hope that by so doing an was an office distinct from that of the Associ­ important but largely overlooked aspect of our ates in executive control and was intended to judicial history may be excavated. In particular, be and all of the Associates recognized it, that I shall examine both the birth of the effort to in judicial decisions all were equal but in man­ subject federal courts to a regime of efficient agement I must act and they would all stand by judicial management, and the simultaneous ori­ if ever question was made."26 Taft boldly and gin of important tensions between this regime promptly resolved "to do something without and traditional American norms ofjudicial dis­ statutory authority"27 and appoint Stansbury interest. "de facto deputy clerk,"28 exacting "a common WILLIAM HOWARD TAFT 53 law bond from him to protect everybody."29 He a large output were the chief had learned a valuable lesson about the dis­ desideratum, he would be very good. 34 tinction and prerogatives of the Chief Justice­ ship. Taft's genial and winning personality was par­ Chief Justices are typically evaluated as to ticularly useful in managing the Court's poten­ how well they employ these prerogatives to tially contentious conferences. Holmes said administer the day-to-day functioning of the that "The meetings are perhaps pleasanter than Court. They are scrutinized for their handling I ever have known them thanks largely to of small emergencies, like the death of Deputy the C.J."35 The Justices also appreciated how Clerk McKenney, and for their ability to dis­ "fairly" Taft distributed case assignments.36 pose efficiently of routinized institutional ne­ Indeed, Harlan Fiske Stone later remarked that cessities like assigning opinions or moderating "there was never a Chief Justice as generous to the Court's Conferences. Measured by these his brethren in the assignment of cases."37 standards, it is clear that Taft was a highly suc­ Most important, however, Taft exercised a natu­ cessful Chief Justice. He was ruthlessly effi­ ralleadership within the Court.3 8 As Augustus cient, moving heaven and earth to force the Hand wrote to him: Court to diminish its embarrassingly large back­ log of cases, Louis D, Brandeis remarked to You have a certain leadership in the Felix Frankfurter that Taft, "like the Steel Cor­ Court that is enormously important and poration, is attaining [all] time production I don't believe has ever existed since records,"30 In the popular press it was said of the times of Marshall himself. Indeed I Taft that "The spirit of speed and efficiency think Brandeis, in the left wing, greatly lurking in the corpulent form of an ex-President appreciates this and knows how much of the United States has entered the Court and it means to have a C.J. whom the Court broken up its old lethargy,"3l will in certain respects follow and at any Within the Court the dominant image of rate will "rally around."39 Taft was not that of a disciplinarian, but rather of a man who could dispose "of executive Supervising the ongoing institutional rou­ detai Is ... easily" and "get through them with­ tines of the Court in this manner has been an out friction."32 "The new Chief Justice makes essential task of every Chief Justice since the work very pleasant," Holmes said. "He is Marshall. Some ChiefJustices, like Taft, have always good natured and carries things along fulfilled these challenges more successfully with a smile or a laugh. (It makes a devil of a than others, but all Chief Justices have under­ difference if the C.J. 's temperament diminishes stood and accepted these obligations of their friction.) He is very open to suggestions and office. Taft's unique accomplisiunent, however, appreciates the labors of others. I rather think is that he managed to expand the very concept the other JJ. are as pleased as I am."33 Brandeis of the Chief Justiceship, so that his successors concurred in this positive assessment: have also in part been judged by their responses to responsibilities not even perceptible before On the personal side the present C.J. Taft. "It is certain," Robert Steamer writes in has admirable qualities, a great im­ his study of the Chief Justiceship, "that the provement on the late C.L, he office was never quite the same after he left smoothes out difficulties instead of it."40 My concern in this paper will be with the making them. It's astonishing he question of how Taft transformed the role of should have been such a horribly bad Chief Justice, and my contention will be that he President, for he has considerable did so by endowing it with a distinctive mana­ executive ability. The fact, probably, gerial outlook, one that he had acquired as Chief is that he cared about law all the time Executive ofthe nation. and nothing else. He has an excellent This claim may sound strange, given Taft's memory, makes quick decisions on ques­ notorious inadequacies as President. Taft tions of administration that arise and if readily admitted that as President he felt "just a 54 JOURNAL 1998, VOL. I bit like a fish out of water,"41 and that he was Conference of Senior Circuit Judges to "ad­ "not fond ofpolitics."42 It was said of Taft that vise as to .. any matters in respect of which as President he constituted "a very large body the administration of justice in the courts of the completely surrounded by politicians."43 In­ United States may be improved," and in par­ deed, Taft's reputation as a politician was so ticular to "make a comprehensive survey of the very bad that he could effectively mock Sena­ condition of business in the courts ofthe United tor William Borah's denunciation of Taft's own States and prepare plans for assignment and nomination as Harding's effort "to take a pol ltl­ transfer ofjudges to or from circuits or districts clan ... and put him on the Supreme Bench in where the state of the docket or condition of the interest of party politics":44 business indicates the need therefor. "5 I The effect of the Act, as Taft observed, was to in­ r seem to have heard a suggestion, troduce "into our judicial system ... an execu­ by way of friendly criticism, when my tive principle to secure effective teamwork," so name was up for the Chief Justiceship, that "judicial force" could be deployed "eco­ that a politician was being put upon the nomically and at the points where most bench. All I have to say that that needed."52 [n Taft's view, the ptimary virtue of was news to me (renewed and increas­ the Act was to empower the Chief Justice and ing laughter), and r think it was news to the Conference of Senior Circuit Judges "tem­ the peopJe. 45 porarily to mass the force ofthe judiciary where the arrears are greatest."5J Yet while Taft may have been, as William Taft had been advocating a reform like this Allen White trenchantly put it, "innocent of for years,54 and there was little doubt among politics,"46 he was always a capable adminis­ contemporaries that the ultimate shape of the trator, determined to improve the efficient man­ statute, as well as its enactment, were "largely agement of the executive branch.47 And it is the result" of his "active advocacy."55 Taft lob­ this perspective that Taft brought with him into bied hard for the bill, effectively mobilizing his the Chief Justiceship. Most specifically, Taft numerous contacts within Congress, and he viewed the federal judiciary as a coherent rightly received the lion's share of the credit for branch ofgovernment to be managed, and he the results.56 Four aspects of the Act of Sep­ viewed the Chief Justiceship as the source of tember 14, 1922, require emphasis, because each that management. This perspective was fun­ embodies an outlook on the federal judicial damentally new, and its implications were pro­ branch that reflects the influence of Taft's ex­ found. perience as President. In the next [ should like to unfold First, and most fundamentally, the Act im­ some of the most salient consequences of this plied "a functional unification of the United perspective for Taft's reworking of the position States judiciary. "57 Just as the executive branch of the Chief Justiceship in its relationship to has always been seen as an integrated whole, the federal judiciary and to the Congress. directed by the President, the Act for the first time conceptualized federal judges as also inte­ II grated into a single, coherent branch ofthe fed­ eral government designed to attain functional The most obvious expression of Taft's vi­ objectives. Previously, as Frankfurter has ob­ sion of the federal judiciary was the Act of Sep­ served, "federal judges throughout the coun­ tember 14, 1922,48 which, as Felix Frankfurter try were entirely autonomous, little indepen­ and James Landis have accurately noted, dent sovereigns. Every judge had his own little marked "the beginning ofa new chapter in the principality. He was the boss within his district, administration of the federal courtS."49 The and his district was his only concern."58 The Act not only authorized the Chief Justice to Act, in contrast, "organized" the "whole judi­ assign district court judges temporarily to sit cial force ... as a unit, with authority to send wherever in the country the needs of the expeditions to spots needing aid."59 docket were greatest, so but it also created a This idea may seem obvious to us today, WILLIAM HOWARD TAFT 55 but in 1922 it provoked great resistance. No federal judiciary structurally parallel to an ex­ less ajudge than Henry D. Clayton (after whom ecutive agency, which is conceptualized accord­ the Clayton Act was named) attacked the Act ing to a similar logic. as manifesting "a dictatorial power over the Second, if judges are "cogs in a machine," courts unrecognized in our jurisprudence."6o there must also exist some intelligence that di­ Clayton objected to "the war idea of mobilizing rects the machine. Organizations require guid~ judges under a supreme commander as soldiers ance, and the functional unification ofthe judi­ are massed and ordered." He argued that ciary thus implied that the judicial branch be "judges are not soldiers but servants, and the subject to "the executive management" of "a people only are the masters whom they serve."61 head charged with the responsibility of the use To protests like these, Taft responded with of the judicial force at places and under condi­ the bmtal and implacable language of instru­ tions where judicial force is needed."63 In this mental rationality. Although he conceded that way the Act transformed the federal judiciary "in the judicial work a judge does on the bench, from an "entirely headless and decentralized" he must be independent," Taft insisted that "in institution,64 into one capableof"executive su­ the disposition of his time and the cases he is pervision."65 to hear, he should be subject to a judicial coun­ Taft defended this transformation as merely cil that makes him a cog in the machine and a matter of "introducing into the administration makes him work with all the others to dispose of justice the ordinary business principles in of the business which courts are organized to successful executive work."66 He argued that do."62 The premise that judges are "organized" the massive increase in federal litigation re­ to accomplish a collective function renders the quired that "we must approach the problems of

Chief Justice 56 JOURNAL 1998, VOL. I its disposition in the same way that the head of Third, Taft knew that the management of a industrial establishment approaches the the judicial branch would require the exercise question of the manufacture of the amount that of the deeply human virtues of leadership, in­ he will need, to meet the demand for the goods spiration, and a commitment to what Taft re­ which he makes. "67 But in fact the necessity of peatedly called "teamwork, uniformity in action executive supervision was also central to Taft's and an interest by all the judges in the work of conception of the President as ultimately re­ each district."n Taft viewed the Conference of sponsible for the "administrative control" of Senior Circuit Judges as a means for serving the executive branch68 In Taft's mind the Chief these various management functions. The Con­ Justice, using the Conference of Senior Circuit ference "is a good thing," said Taft, because it Judges as a kind of cabinet, was responsible "solidifies the Federal Judiciary" and "brings for the management of the judicial branch, just all the district judges within a mild disciplinary as the President was responsible for the man­ circle, and makes them feel that they are under agement of the executive branch.69 real observation by the other judgcs and the The managerial obligations that Taft im­ country."73 The Conference was also a method ported into the office of Chief Justice were not of gathering information about the state of the exhausted by the operation of the Conference. federal judiciary, of collecting both statistical Taft enthusiastically embraced a sense of ge­ and narrative data. And the Conference was a neric responsibility for the over-all functioning tool for "trying to come in touch with the Fed­ of the federal judiciary. Exemplary are the let­ eral Judges of the country, so that we may feel ters Taft would write to judges who had failed more allegiance to a team and do more team­ to decide submitted cases for unconscionably work."74 The Conference could generate the long periods of time: close coordination.7s ever, was only one tool Pc""r,wi",,,6 "".,,""''''',.. le:adj~rSI11p. In fact, Taft for such leadership in raljudges. He was al­ uch with the District

in their ef- "76 He would "a long gos­ intimate knowl­ District Judges appreciated this wrote to Taft ex- Learned Hand, for "It is a great comfort to know the interest that you take. To be frank, we have never felt it before your incumbency."79 potential of executive supervision, but also to As a good executive, Taft wished "to have all create lines of accountability. For this reason the members of the Federal Judiciary realize that Chief Justice Hughes, when the Court in the we are remanded to the top, and that whatever 1930s was subject to withering political assaults, we can do here in Washington to help, we will chose to diminish the exposure and vulnerabil­ do."80 ity of such an aggressive managerial posture Fourth, the corollary of the functional uni­ by seeking as Chief Justice to decentralize fed­ fication of the federal judiciary was that the eral judicial administration.7l But Taft, in the judicial branch could now articulate its ongo­ full flush of progressive reform and personal ing and routinized requirements to the legisla­ popularity, had no such qualms. ture,just as did the executive branch. The Con- Wll,LIAM HOWARD TAFT 57 ference was the perfect institutional vehicle for system of the country. Precedents that keep this articulation, and Taft conceived it as en­ the judges away from committees who are to abling "the judiciary to express itself in respect help are not precedents that appeal to me."90 of certain subjects in such a way as to be help­ By March 30,1922, in the course of testifying ful to Congress."81 Taft rapidly and effectively before the House Judiciary Committee in favor molded the Conference into a voice for the in­ of bills to enlarge the certiorari jurisdiction of stitutional needs of the judicial branch.82 As the Supreme Court and to reform the compen­ he accurately reported to the Conference in sation of the Court Reporter, Taft could com­ 1925: "The recommendations of this Confer­ fortably remark that HI hate to be in the attitude ence have a good deal of influence. I mean that of a continual beggar from Congress, but I seem they are accepted as matters for serious con­ to have anived at the court just when it was sideration. "83 necessary. "91 Taft was unwilling, however; to regard the Taft did not hesitate to draft his colleagues Conference as the exclusive voice of the judi­ on the Court to assist in his lobbying efforts. In ciary.84 He believed quite strongly that the Chief 1926, for example, he brought Justices Holmes Justice was the primary national spokesman for and Brandeis with him to make the case before the cause of the administration of justice, and a Subcommittee of the House Appropriations he therefore sought to maintain an active per­ Committee for a deficiency appropriation to sonal presence in Congress in matters that tran­ enable the First Circuit to purchase an urgently scended the pronouncements of the Confer­ needed bar library. "I wanted to bring some big ence. 8S In this regard Taft functioned as an guns to bear," Taft explained. "I am a constant independent lobbyist for a legislative agenda, visitor and I did not consider that I had influ­ much as he would have as ChiefExecutive.86 It ence enough. This is a real emergency."92 is to this aspect of Taft's conception of the The presence of Taft's political foes on con­ chiefjusticeship that I would now like to turn. gressional committees, particularly in the Sen­ ate, sometimes rendered his personal testimony III counter-productive. In pressing for the legis­ lation reforming the Supreme Court's jurisdic­ From the very outset of his chief justice­ tion, for example, Taft learned from Senator ship, Taft "thought that it was part of my duty" Cummins that "some of myoId enemies on the as the head of the federal judiciary, "to suggest [Senate Judiciary] committee rather resent my needed refonns, and to become rather active in being prominent in pressing legislation. They pressing them before" Congress.87 Taft was want me to 'shinny on my own side. '''93 So Taft quite aware that this was a new conception of shrewdly selected Justices Willis Van Devanter, his office. "I don't think the former Chief Jus­ James C. McReynolds, and George Sutherland tice had so much to do in the matter of legisla­ to speak in his place.94 Taft testified instead tion as I have," he wrote to his brother Horace, before the House Judiciary Committee.9s but "I don't object to it, because I think Chief It is clear, then, that Taft did not regard the Justices ought to take part in tha1."88 chief justiceship as an accommodating civil Throughout his service on the Court Taft servant, essentially passive although ready to was a frequent witness before congressional provide helpful advice when requested by com­ committees, lobbying hard for judicial reforms. petent legislative authorities. Taft instead un­ Taft's relentless determination "to keep press­ derstood the position as analogous to an ex­ ing" Congress for legislation89 began almost ecutive official fully authorized to conceive and immediately after he assumed office. On Octo­ "push" a legislative agenda. He realized that ber 5, 1921, he testified before the Senate Judi­ the responsibility of managing the judicial ciary Committee in support of the Act of Sep­ branch carried within it the ancillary responsi­ tember 14, 1922. He realized that he had "vio­ bility of promoting legislative reforms that lated the precedent in doing this," but he was would ensure the effectiveness of such man­ unfazed, because "I am deternlined to exercise agement. The logic of this position remains such influence as I have to help the judicial manifest to this day. Chief Justice William H. 58 JOURNAL 1998, VOL. I

r------, When Taft received a complaint from a provincial lawyer that the government did not provide a copy of the indict­ ment to a defendant, he took the matter up with Solicitor General WiUiam Mitchell (right). De~pite Mitchell's cautions that doing so would place a financial and bureaucratic burden on the government, Taft asked Senator Albert Cummins (left), Chair of the Senate Judiciary Committee, to prepare a bill remedying the ::....-_ __....,...... _ ...... matter.

Rehnquist, for example, in a recent annual ad­ or practice but I know positively that in this dress on "the state of the judiciary" -an ad­ District we can not obtain such a copy without dress whose deliberate evocation of the paying for it except in two cases: namely-if President's annual State of the Union address the defendant is charged with homicide or will would have been inconceivable before Taft's make a pauper showing." lOo transformation of the chiefjusticeshi})---{;hose Taft then wrote to Solicitor General William to stress the proposition that the federal courts Mitchell, asking him to find out "whether it is and Congress "must work together if feasible the practice to furnish defendants with copies solutions are to be found to the practical prob­ ofthe indictment." He enclosed Coursey's let­ lems that confront today's federal judiciary."96 ter, adding "I am rather inclined to think that he A small but telling example of the energetic has a good case, and that the defendant should and comprehensive manner in which Taft pur­ be given a copy, at the expense of the Govern­ sued this aspect ofthe chiefjusticeship may be ment."IOI Mitchell sent back a detailed, six-page found in the history of Public Law No. 563, letter, explaining that federal statutes currently which ended the practice in federal courts of required clerks "to charge the accused for cop­ charging defendants with a fee to receive cop­ ies of the indictments, except in cases involv­ ies of their own indictments.97 ing capital offenses," and that courts had In November 1925, Taft received a letter deemed the requirements of the Sixth Amend­ from Joseph Coursey, an unknown lawyer from ment satisfied "by the formality of reading the South Dakota, complaining of "the failure of indictment to [the defendant] when he is ar­ Federal law ... to provide a copy of the charge raigned." Mitchell went on to caution that "if to the defendant .. .. It seems to me it should be clerks are directed generally to furnish copies almost fundamental that a defendant be given of the indictments without charge to the ac­ as a matter of right a copy of the accusation cused, it would greatly increase the volume of against him."98 Taft responded by asking work to be performed in the clerk's office, par­ Coursey whether the charge for the indictment ticularly on account of the large number of was imposed "by law, or whether it rests in a cases under the National Prohibition Act, and local rule ofpractice."99 Coursey answered that that the clerks' offices are now shorthanded as he did "not know whether the rule is one oflaw the result oflack of adequate appropriation. "102 WILLIAM HOWARD TAFT 59

Not deterred by Mitchell's warning, Taft Taft was keenly aware of this tension. When wrote to Senator Albert Cummins, Chair ofthe Taft became Chief Justice he gave up an edito­ Senate Judiciary Committee, explaining the situ­ rial column in which he had commented regu­ ation and commenting that "I should think ... larly on current events, stating: that the Government ought to furnish, at its own expense, indictments to defendants."103 The degree in which a judge should Taft viewed the question as onc ofjustice, rather separate himselffrom general activities than constitutional compulsion, and he dis­ as a citizen and a member ofthe commu­ missed the potential bureaucratic burden with nity is not usually fixed by statutory law the observation that clerks could easily type but by a due sense of propriety, consid­ indictments in triplicate. Cummins agreed with ering the nature of his office, and by Taft's assessment, and he asked Taft to "pre­ well-established custom. Certainly, in pare a Bill relating to furnishing copies of in­ this country at least, a judge should keep dictments to defendants and send it to me. I out ofpolitics and out of any diversion will be glad to introduce it."'04 or avocation which may involve him in Taft requested that Mitchell draft a bill, politics. It is one of those characteristic which the Solicitor General did, noting that queer inconsistencies in the British "those in charge of the appropriations for the dicial system, which was the forerunner Department of Justice have estimated that" the of our own, that the highest judicial of­ bill would "substantially increase the expenses ficer in Great Britain, the Lord Chancel­ of operating the offices of the clerks of the lor, is often very much in politics and courts .... I have explained, however, that this has always been.lo7 Bill is not being furnished you as a Department measure, but merely as the result of a persoaai The passage is noteworthy because it casts a request for a document to supply Senator wrstful at the office ofthe EngHsh Lord Cummins'wants."W5 Taft forwarded Mitchell's Chancellor at the very moment that it acknowl­ draft to Cummins, who to "introduce edges distinctively American obligations of the bill and have it referred to the Commirtee."i06 judicial disinterest The result was Public Law No. 563, which be­ Despite his good intentions, Taft very came law in January 1927. quickly found that he could not contain his That Taft would take the time to evaluate "bursting expression,"108 He believed that he the complaint of an unknown, unsophisticated, could reconcile his commitment to law reform and provincial lawycr, that he would summon with Americanjudicial norms by speaking out the energy and will to remedy that complaint in only to bar associations in order to mobilize the face of bureaucratic opposition, that he tllem to lobby in support of measures for the could command the personal respect and as­ reform of the administration ofjustice. "One of sistance ofleaders in the executive and legisla­ the most important extra curriculum things tive branches in this task, aHreveal much about that I have to do as Chief Justice," he said, is Taft's construction ofthe role of Chief Justice. "to organize the Bench and the Bar into a In Taft's eyes, the chief justiceship was muoh united group in this country ded.icated to closer in spirit and responsibility to the English the cause of the improvement of judicial pro­ position of Lord Chancellor, an executive offi­ cedure."J09 Elihu Root in fact commented to cial whose portfolio included the administra­ Taft that he was first Chief Justice to fully tion of justice, than to any previous American appreciate the dynamics of the Bar as an orga­ model ofa federal judge. nizatioB. Ifa national bar spirit can be created it The English model of an executive judicial will have an immense effect upon the adminis­ official did not, however, fit easily into Ameri­ tration of justice:'J 10 can circumstances. Reform in the American Taft began his program of mobiiizing the context often required political mobilization, bar almostirnrnediately upon taking office. On which potentially conflicted with traditional August 30, r921, he spoke to the Judicial Sec­ American norms of judicial nonpartisanship. tion ofthe American Bar Association, seeking 60 JOURNAL 1998, VOL. I support for what would later become the Act I venture to think that there are some of September 14, 1922.111 Four months later, things that a judge may speak of and he spoke to the Chicago Bar Association, seek­ may discuss in public and not use a ju­ ing support for the Act, as well as for the sim­ dicial opinion for the purpose. The sub­ plification of federal procedure and the expan­ ject is that oflaw reform. From the earli­ sion of certiorari jurisdiction in the Supreme est traditions of the English bench from Court.112 These speeches were criticized on the which we get our customs, the judges floor of the United States Senate as "different of the highest courts of Great Britain from those made by any other Chief Justice. "113 have taken an interest in and a part in Senator William 1. Harris of Georgia opined the formulation oflegislation for better­ that "the judiciary is going to be injured, and ing the administration of justice. They the people will not have the same high respect have written and spoken on such sub­ for it if the Chief Justice and associate justices jects with entire freedom and without of the Supreme Court of the United States make incurring criticism. You doubtless re­ speeches in public not in their line of duty as member that in Campbell's Lives ofthe has been done recently."114 Lord Chancellors and the Chief Justices, Taft, however, was defiant. Three days later a part of the story of each life is work he shot back in an address to the New York done in law reform. Measures of this County Bar Association: sort that are put through in England are

iled on his er, Henry W. left), to help opposition to 1, a bill that d federal

jurisdic­ diversity iction. Despite an influential bel' of the New

named partner at Cadwalader, Wickersham & Taft, Henry was ineffec­ tive at generating publicity in the influential New York newspapers. WILLIAM HOWARD TAFT 61

usually prepared by the law officers of tually once proposed abolishing all federal the govemment and sometimes by the courts except the Supreme Courtl J9-was the Lord Chancellor himself. The judges of Chair of the Senate Judiciary Committee. Re­ the Supreme Court have taken an active markably, S. 3151 was reported favorably by part in the discussion of the measures the Senate Judiciary Committee without even a as they go through their legislative hearing. 120 course. And why should it not be so? Taft was appalled by what he regarded as With their attention constantly directed "the remarkable effort made in the Senate by toward the workings of the machinery Norris and Walsh to emasculate the jurisdic­ of the administration of justice, they are tion of the Federal trial courts ... and to sneak at a more advantageous point of obser­ it through without the country's being advised vation and if they use their opportuni­ about it."121 He saw the bill as "a great attack ties, are better able to make recommen­ on the administration of justice in this coun­ dations with respect to law reform than try,"J22 the "most radical bi ll affecting the use­ any other class in the communi ty.1I5 fulness and efficacy of the Federal Judiciary that 1 remember ever to have heard sug­ Taft never did retreat from his program of mo­ gested."'23 Taft threw himself into the task of bilizing political support for the cause of judi­ "trying to save the life of the Federal Judi­ cial reform. He understood well enough that ciary."124 American judges were appropriately reluc'tant It quickly became apparent, however, that to engage "in extra-judicial activities" because Taft's opposition to S. 3151 could not be con­ they might be cast into positions "actually or fined to the nonpartisan expression of exper­ seemingly inconsistent with absolute impartial­ tise. Thus when Taft wrote "to sound an alarm ity in the discharge of ... judicial duties."116 on the subject" to his friend Casper Yost, edi­ But, explicitly invoking the precedent of the tor of the influential St. Louis Globe-Democrat, English Chancel lors, Taft apparently believed he cautioned that "1 am so situated that I can that advocacy of judicial reform would not not take a political part, but ... I invoke your compromise his judicial impartiality because, influence in maintaining the protective power as he said, he could "discuss" this subject "in which citizens may secure from the Federal Ju­ public and not use a judicial opinion for the diciary in defense of their rights."'25 Yost re­ purpose." As a good child of the Progressive sponded by publishing a lively editorial. 126 era, Taft seemingly regarded judicial reform as That Taft thoroughly understood and was purely technical and apolitical.117 willing to exploit the explosive politics ofS. 3151 But of course in the American context any is evident from a letter he sent to his brother, such belief is merely naive, and so in at least Henry W. Taft, an influential member of the New two distinct ways Taft's public advocacy some­ York Bar, 127 urging him to begin a public cam­ times threw him perilously close to violating paign against the bill: judicial norms of disinterested neutrality. First, in America there was simply no clear line dis­ Now my own judgment about this tinguishingjudicial reform from partisan poli­ bill is that if Norris tries to get it through, tics. This can perhaps best be illustrated by and is supported by the Democrats, it Taft's opposition to S. 315 1, a bill sponsored will prove to be dynamite in the next by Progressive Republican Senator George campaign. It will rouse every negro in Norris of Nebraska and strongly supported by the United States, and they cast a great Democratic Senator Thomas Walsh of Mon­ many votes now in the large cities since tana, who was later selected by Franklin D. they have moved north, and when it Roosevelt as Attorney General. The bill becomes known to them that they can stripped federal district courts of both federal not resort to the local Federal courts, question jurisdiction and diversity jurisdic­ they will certainly be convinced, as they tion.118 By a stroke of great irony, Norris, who ought to be, that they are suffering a thoroughly disliked federal cOUlt s-he had ac- practical deprivation of their Federal 62 JOURNAL 1998, VOL. I

look to the Times as a kind ofBible."131 Henry accepted the "rebuke" and promptly contacted Rollo Ogden, editor of The New York Times. J32 On April 22 the Sunday Times published an editorial strongly opposing the bill. 133 The fierce controversy that surrounded S. 3151 simultaneously concerned politics and the administration of justice; the two were insepa­ rably combined. Taft knew that he could not involvement, yet his name and views in the debate. On the t100r for example, Senator Royal CoPel;and of New York, seeking to have the bi 1I rerIUllld~)d to the Committee for hearings, ob­ "I am advised by the attorneys who have spoken to me that the Chief Justice of the snt\rp,m.' Court feels that the bill is not a good resPcl:tS."J34 In its editorial, The referred to this that "It is no secret, since in the Senate by Mr. Cl()peilan,aofNewYork that the ChiefJustice of /t:heSUprefm~VCourt regards some of the fea­ .• ·'ttJ.l'!es()rthis,QillaiHl10st undesirable and harm­ later, Senator Duncan debate over bill S. 3151, Senator Royal Copeland Fletcher of Florida had reprinted in the Con­ of New York (above) told his colleagues on the gressional Record an editorial in the American Senate floor that the Chief Justice opposed it. The bill was amended to restore federal ques­ Bar Association Journal strongly opposing S. tion jurisdiction. 3151, which relied heavily on arguments attrib­ uted to Taft,136 as well as an editorial from the rights and protection. I think you ought Florida Times Union that opposed the bi II in to go to the New York Times and to the part on the grounds that "the Chief Justice of Tribune and explain the effect ofthe bill the United States Supreme Court ... is reported and have editorials printed on the sub­ to have said that this bill has features that can ject Reference to the negroes will find be regarded only as most lllldesirable and harm­ an echo, and I am quite sure that the ful."l37 Times will feel like warning the Demo­ As a result of the accumulating pressure, cratic party against any such radical Norris was forced to amend his bill to restore measure. I think you ought to bring it to federal question jurisdiction. 138 Taft wrote Hilles' attention and that the opposi­ Henry, "I think Norris has heard a good deal tion to it ought to be made a plank in the about his proposed changes, and . .. he does National Republican Platform. 128 not find them so easy to push through as he thought he would, in view of the agitation you When Henry proved inept in generating have all stirred up on the subject."'39 Norris' publicity, paralyzed by Charles Evans Hughes' revised bill eventually stalled in the Senate. Yet fear that anything "coming from New York" Taft's intense struggle to defeat it iIIustrated would be dismissed as ref1ecting "Wall Street the uneasy line between disinterested law re­ interests,"129 Taft lost patience. 130 "What I was form and unabashedly political mobilization. anxious to do," he explained, "was to head the The second reason why Taft's appeal to an movement by an announcement in the New York English model of an executive judicial official Times, for there are a great many people who was dangerous in the American context con- WILLIAM HOWARD TAFT 63

Each

sional hearings testify th objection anywhere. It h the ChiefJustice of the U into it and approved it. It efficiency measure."140 Taft wrote to 8, 1928, urging approval of grounds that the District Court "very much burdened with busi Court of Customs Appeals did "not have enough to dO ."141 Despite his ongoing struggle with Walsh over S. 3151, Taft was from the Court of Appeals of the District of Co­ sweetly and nonpartisanly solicitous: "1 am lumbia to the Court of Customs Appeals, Taft wrote to Senator Thomas Walsh (above), the sorry to impose on you, my dear Senator, most innuential Democrat on the Senate Judi­ another burden, but as I understand you are ciary Committee, outlining why he thought the on the committee for the consideration of this bill was constitutional. Apparently, the Chief bill, 1 venture thus to write to you. It will cer­ Justice felt free to give constitutional advice to a political opponent. tainly help the administration of justice in the District."142 Most striking from a modem point of view, however, is that Taft included in his letter a long defense ofthe bill's constitutional­ of a statute to a Senator who was in many ways ity, which began: his archopponent. It indicates how unembar­ rassed Taft must have felt about the practice. I understand that there are two per­ Apparently he regarded the constitutional is­ sons who think that the bill is unconsti­ sues posed by the statute as uncontroversial tutional. I ean not for the I ife of me un­ and settled. But constitutional judgment in the derstand how any such doubt could United States is seldom a secure thing. Taft arise. The Court of Customs Appeals is premised his argument on the fact that the Court a purely statutory court, and Congress of Customs Appeals was an Article I court, yet is not limited in any way in the func­ within only thirty years Congress would itself tions which it gives to it. 143 declare the (now renamed) Court of Customs and Patent Appeals an Article III court,146 a Walsh replied to Taft that he would "make an conclusion sustained by the Supreme Court of effort to have the matter put in" shape for ap­ the United States. 147 proval,144 and the bill, seemingly uncon­ In this country, as distinct from England, troversial, was enacted into law March 2, the institution of judicial review renders advi­ 1929. 145 sory opinions dangerously uncertain, and this It is remarkable that Taft would submit an poses a powerful dilemma for a Chief Justice advisory opinion about the constitutionality who would accept responsibility for pushing a 64 JOURNAL 1998, VOL. I legislative agenda for judicial reform. For leg­ islative change cannot be proposed without be­ ing endorsed, and how could Taft endorse leg­ islation without rendering an advisory opin­ ion?148 The dialectic of this dilemma is vividly ex­ posed in the story of Taft's attempt to relieve federal courts of the flood of small criminal cases that Prohibition had swept into their jurisdic­ tion. Not only did these cases clog the docket, but federal judges found them intensely de­ moralizing. 149 Almost from the day he took of­ fice Taft believed that legislation was needed to allow United States Commissioners to try such cases. ISO In 1923, at the second meeting of the Conference of Senior Circuit Judges, Taft pushed through a resolution to the effect that "in prohibition and other misdemeanor cases" U.S. Commissioners be authorized "in all cases in which the defendants do not file written de­ mands for jury trial, to take and file written pleas of guilty and to hear the evidence on pleas of Representative George Grabam (above), Cbair not guilty and to file in court their reports ofthe of tbe House Judiciary Committee, told Repre­ cases and their recommendations of what judg­ sentative Duncan Denison of Illinois that the ment should be entered."lsl Taft regarded this Chief Justice had merely alerted members of Congress to a problem in need of solution, resolution as one of the "most important" of without proposing any particular legislative the Conference.IS2 response. This was, in fact, untrue: six months The recommendation went nowhere, how­ earlier Taft had written to Graham to propose ever, and so in December 1925 Taft on his own legislation to allow U.S. Commissioners to bear cases arising from Prohibition so as to initiative sought to revive the plan. He wrote keep the petty criminal cases from clogging to Representative George S. Graham, Chair of federal dockets. the House Judiciary Committee, and to Senator Albert Cummins, Chair ofthe Senate Judiciary Committee, that he was "very much troubled jury trials within ten days after the fil­ about the conditions that prevail in the District ing of the information or the indict­ Courts of the United States. They are being ment; that he should be required to demoralized by this police court business." Taft act also as a regular United States proposed an elaborate legislative scheme to Commissioner, and might be called remedy the situation. upon by the District Judge to act as a Master in Chancery or a Referee . .. . How would this suggestion strike I don 't think he thought to be ap­ you? Provide that in every District there pointed by the President, but that as should be appointed a Judicial Commis­ Judicial Commissioner his might be sioner to serve during good behavior, regarded as an inferior office, and un­ that he should have authority to hold der the Constitution he could be ap­ court, try jury trials and have jurisdic­ pointed by the District Court . .. . Can tion to try misdemeanors and felonies, not you think this over and frame a punishment for which shall not exceed bill? Something ought to be done. ljust two years' imprisorunent; that he should throw out this suggestion, with the be given the power to compel the de­ hope that it may germinate into some­ fendants to elect whether they desire thing.IS) WILLIAM HOWARD TAFT 65

Six months later, in the course of debate on the courts, if the Supreme Court had been con­ a bill to authorize the appointment of additional sulted and advised in the preparation of the district judges, Representative Graham ob­ law, it seems to me it would be embarrassing, served on the floor of the House that he was and I do not believe the committee ofthe House "in conference with representatives of the Sen­ ought to do that. ate Judiciary Committee and some ofthe judges ofthe Supreme Court trying to work out some Mr. GRAHAM. I think, perhaps, ethically scheme by which the courts of the United the gentleman is correct, and I am not going to States might be relieved of some of the very dispute that proposition, but I do say it was heavy burdens which they are now obliged to perfectly competent for those who had charge carry." Graham pledged to "strive to create some of the court business throughout the country plan by which a minor judiciary may be cre­ to call our attention to it and ask us to take it up ated."154 Representative Duncan Denison of independently; and that is all that was done. Illinois rose to inquire into "the wisdom oftak­ ing into these conferences, in trying to work Mr. DENISON. I see no objection to that. out legislation that will relieve the courts of a part of their work, the members of the Supreme Mr. GRAHAM. That is all that was done. Court. Does the gentleman think that is a wise They would not be taken into consideration in policy?"155 Thrown on the defensive, Graham framing the legislation for the legislative duty quickly backpedaled: would rest upon the House and the Senate. 156

Mr. GRAHAM. Well, without passing any The dialogue crisply captures the dilemma opinion upon the wisdom of the policy, it came of any American Chief Justice aspiring to ad­ about without our solicitation and we attended vocate legislative reform. Representative Gra­ simply as conferees. ham deftly defused Denison's challenge by asserting that Taft had merely called the atten­ Mr. DENISON. In the constitutional con­ tion of members of Congress to a problem in vention ... that theory was abandoned as be­ need of solution, without proposing any par­ ing unwise, the theory of having the Supreme ticular legislative response. But we know from Court advise the Congress as to legislation, Taft's correspondence of six months earlier that and I think if we should return to that policy it this was not true. Had the real facts been known, would be a dangerous one. Taft's "embarrassment" would indeed have been acute. Mr. GRAHAM. I may say that this confer­ Taft apparently took the point. When ence arose and was called through the inter­ Frances Caffey subsequently wrote him to in­ vention of the Supreme Court judges, upon quire about the status of the 1923 recommen­ one of whom, the ChiefJustice, there depended dation of the Conference of Senior Circuit the duty of reviewing the work in the district Judges so as to be able more effectively to courts all over the United States in the con­ lobby for bills expanding the jurisdiction of U.S. gested districts and trying to provide a rem­ Commissioners then pending before Con­ edy. He simply called the chairman and the rank­ gress, 157 Taft responded with uncharacteristic ing member of each Judiciary Committee in to caution: "I have to be careful in taking part ask them to take up the subject and see if there myself in the preparation of such a bill, because could not be some plan devised. That is all. any bill is likely to come before our Court for Mr. DENISON. What I have in mind is this. interpretation and inquiry into its validity."158 Suppose the Congress should enact legisla­ Taft's zeal to refashion judicial administration tion that is intended to create some sort of sub­ had been checked by the institutional realities ordinate courts to relieve the other courts of ofAmerican judicial review. some oftheir duties, and afterwards the consti­ Sometimes, however, that zeal pushed Taft tutionality ofthe legislation should be raised in plainly beyond what would today be regarded 66 JOURNAL 1998, VOL. I as elementary norms ofjudicial propriety. The hold hearings on the bill in the House, and he strong temptations generated by his urgent sought "to have the various Bar Associations sense of responsibility for the federal judicial . .. apply to the committee to be heard upon branch are well revealed by his struggle against this bill in opposition to it, both on the ground S. 624, a bill sponsored by Senator Thaddeus of its doubtful constitutionality and also be­ Caraway of Arkansas that would make it re­ cause of its interference with the efficiency of versible error for a federaljudge to comment on the Federal courts."163 the credibility of witnesses or the weight of the Not content with this blatantly political ma­ evidence. 159 Most states prohibited judges from neuvering and mobilization, Taft on December such comments, and Taft had long regarded 2, 1924, composed a remarkable Memorandum these prohibitions as empowering "acute and in opposition to the bill. The cover sheet to the eloquent counsel for the defense" to promote Memorandum, which Taft apparently drafted "an atmosphere of fog and error and confu­ for his own records, states: sion," and so drastically to impede the orderly administration ofjustice . 160 For decades he had I am exceedingly anxious to beat the taken every opportunity passionately to op­ bill ... because it will really greatly in­ pose them. 161 So when S. 624 was approved by terfere with the Federal judicial system. the Senate Judiciary Committee and then by I was able to hold the bill off last ses­ the Senate Taft was galvanized into ac­ sion through Chairman Graham and Snell tion. of the Rules Committee in the House. I "I am trying to prevent the passage of a bill have been to see the Attorney General aimed at the usefulness of the Federal courts," once or twice about it and I saw the he wrote to his wife: President this morning and asked him to read this memorandum. I am quite which seeks to deny to Federal Judges sure that he will be inclined to veto the the power to comment on the evi­ bill, but it ought not to come to him, and dence as the English Judges do. This I think the Attorney General suggests has always been done in the Federal his sending for Graham and Nick Courts and has contributed much to Longworth to see whether it can not be their effectiveness. Now these dema­ shelved. I submitted the memorandum gogues and damage lawyers are at­ to Van De Vanter [sic] and he fully ap­ tempting to put the Federal Courts on proved the statement, but he thought the basis of the State courts in this that I put a little too much admiration regard. The bill has passed the Sen­ for the English in it. However, as this is ate and the Senators yielded supinely, not to be published and is only a confi­ except Reed of Pennsylvania. It has dential memorandum for the President been reported out of the House Judi­ and the Attorney General, and as I have ciary Committee, but I am hoping to only given out one copy in addition to hold it over until the next session, in that given to Van Devanter, there is no which case I feel fairly confident that occasion for changing my view which I can induce the President to veto it, is stated herein, or ameliorating it with and I believe his veto would prevent reference to prejudices against En­ its passage. There is a serious ques­ gland. IM tion as to whether it is constitutional, but I would prefer much to have it The Memorandum itself is a twelve-page beaten through a veto than to throw document arguing that the Caraway bill would upon the Court the question of its con­ greatly "weaken the usefulness and efficiency stitutiona1ity.162 of Federal Courts in the dispatch of business involving jury trials."165 On page six the Memo­ Taft attempted to secure a commitment from randum addresses the "question ... whether Judiciary Committee Chair George S. Graham to Congress may by law effect this demoralizing WILLIAM HOWARD TAFT 67

assault on the trials in our Federal Courts. For­ send a copy of it also to Senator Cummins and tunately the right of the Judge to exercise this another one to Senator Gillett. Don't make me power of summing up to ajury upon the facts is the author of it, for reasons that you will under­ conferred upon him by the Constitution of the stand."1 70 United States, and can not be taken away by Taft's opposition to the Caraway bill never legislation."166 The remainder ofthe Memoran­ did erupt into scandal, although this seems dum constitutes a detailed argument for this more a matter of luck than anything else. The proposition, concluding: very intensity that Taft brought to the cause of judicial administration betrayed him into ac­ In view ofthese authorities, it can tions that could scarcely be defended in pub­ not be that Congress may take away the lic. Of course, on the other side ofthe coin, it is power of a Judge of a United States no doubt due to Taft's vigorous interventions Court in carrying on a jury trial, to com­ that federal judges enjoy to this day the tradi­ ment on the evidence and even express tional common law prerogative to comment on his opinion on the facts, ifhe leaves the the weight of evidence and the credibility of question offacts clearly to the jury ulti­ witnesses. 171 But this result cannot justify the mately. It was an essential element of a means Taft used, which can only be explained jury trial in the English courts when the by reference both to the passion of his commit­ Declaration of Independence was ment and to the inherent ambiguities of the signed and our Constitution was framed English model of ajudicial executive adminis­ and adopted and when the 7th Amend­ trator. Taft's opposition to S. 624 demonstrates ment became part of it. That being true, what a dangerous model this could be when Congress may not impair the institution transposed to the American context. by attempting to restrain Federal Judges from the discretion to exercise the power IV vested in them by the fundamental law. 167 It was said of Taft that the chief justiceship was his "manifest destiny."172 Certainly he The Memorandum is a stunning document freely admitted that the office was "the ambi­ It is a fully developed advisory opinion, crafted tion of my Iife."l?3 When Taft finally attained by Taft for the explicit purpose of affecting the that ambition, it was after a long career of ex­ outcome of legislation. Taft knew that the ecutive administration: as Governor of the Phil­ Memorandum was ethically suspect, which is ippines, Secretary of War, and President of the why he controlled so tightly its dissemination. United States. Taft brought this experience with It is revealing that at first Taft circulated the him as he appropriated the role of Chief Justice Memorandum only to the President, with whose and made it his own. It was natural for him to structural position vis-a-vis Congress Taft regard the administrative duties of the chiefjus­ clearly felt a strong affinity. ticeship as analogous to the executive respon­ As Caraway continued to press his legisla­ sibilities with which he was so familiar, espe­ tion, however, Taft grew bolder. In March he cially because there were powerful English pre­ wrote to his brother Henry that "We stopped cedents for this approach to judicial adminis­ the Caraway bill to take away the power of the tration. Federal Judges in charging a jury, and I am go­ The most lasting effect of Taft's unique per­ ing to take time by the forelock to prime Sena­ spective was its root assumption that the fed­ tor David Reed of Pennsylvania on the prob­ eral judiciary was not a collection of indepen­ able unconstitutionality of such a law."168 Taft dent judges, but instead a unified branch of enclosed a copy of his Memorandum, 169 and in government with functional obligations. No May he suggested to Henry that "If! were you ChiefJustice after Taft has been able to escape I would open a correspondence with the only being evaluated on his fulfillment of these obli­ man who opposed it in the Senate, and that gations. In this regard, Taft did indeed trans­ was Senator Reed of Pennsylvania. You might form the office of Chief Justice. 68 JOURNAL 1998, VOL. I

But Taft, flush with the enthusiasm of a new ideological Iines. The Democratic governor of New York, idea, and filled with the contacts and assurance Franklin Delano Roosevelt, ordered New York state flags to be hung at half staff for thirty days to honor Taft, pro­ of an admired ex-President, pushed this per­ claiming: spective to its natural limits. The difficulty he encountered, but clearly did not fully concep­ The passing of William Howard Taft. tualize, was that executive administration in the brings a feeling of universal sorrow to the people of New York. His many years of public context of a regime of separation of powers service in wide fields and the simplicity and contains important elements that are essentially generosity of his personality will be held al­ political, and that therefore stand in tension ways in affectionate esteem. with American ideals ofjudicial nonpartisanship "State Tribute to Taft," The New York Times, March and with the American institution of judicial 10, 1930, p. 5. Even Senator Hiram Johnson, a pro­ review. Taft struggled with this tension gressive follower of Theodore Roosevelt from Cali­ throughout his tenure as Chief Justice, acting fornia , one of only four Senators to vote against Taft's in ways that fell on different sides of what to­ confirmation in 1921, could affirm to the press that day might be regarded as obvious ethical Of recent years I have become very fond of boundaries. Chief Justice Taft. It was with the utmost re­ Taft truly deserves to be known as the fa­ gret that I learned of the necessity of his res­ ther of federal judicial management. We can ignation. I feel that he has rendered a great and lasting public service and that his death is learn from his difficulties, however, how subtle a very severe loss to the nation. and complex is the relationship between the imperatives ofjudicial management and Ameri­ "Taft's Life Praised as Truly American," The New can norms of proper judicial behavior. Chief York Times, March 9, 1930, p. 26. Taft's accomplish­ ments as Chief Justice can be measured against Justices after Taft can no longer share his na­ Johnson's assessment of nine years earlier, on July I, ive Progressive faith in the neutrality of disin­ 1921, when he wrote: terested administration. In our own fallen world of post-Progressive disillusion, Chief Justices I felt that I would be false to the old Roosevelt fight, false to every principle in which I be­ must somehow negotiate between the necessi­ lieved, false to myself, and false to my coun­ ties of functional rationality and the require­ try, if r voted for Taft's confirmation .. ments ofjudicial neutrality. IfTaft can teach us Yesterday, we may have changed the course anything, it is that this negotiation will be nei­ of our country, we may have altered the his­ tory of the world by placing in the position ther clear nor easy. where he was the deciding vote in the most powerful tribunal of the universe, a man de­ void of learning, judicial temperament, and of Endnotes principle.

J From 1913 through 1921 Taft was Kent Professor of Johnson to Raymond Robins, Hiram Johnson Papers. Constitutional Law at the Yale Law School. )"Leaders Here Laud Character of Taft," The New York ' Herbert Hoover, "Address Commemorating the 20th Times, March 9, 1930, p . 26. See "Judge Morton Anniversary of the Boy Scouts of America," March Ranks Taft with Greatest: Puts His Service Besides 10, 1930, Public Papers of tbe Presidents of tbe that of Marshall," Boston Globe, February 4, 1930, p. United States: Herbert Hoover, January 1 to 16. December 31, 1930 p. 87 (1976). See "William 4 Robert M. Mennel and Christine L. Compston, eds., Howard Taft," The New York Times, March 9, 1930, Holmes and Frankfurter: Their Correspondence, Section 2, p. l: "Of some public men, when they pass 1912-1934, p. 249 (University Press of New England into the shadowed valley, it is said that they are the 1996). most admired of their generation . . . but about Mr. 5 "President Names Hughes Chief Justice as Taft Re­ Taft there is a universal agreement that he made him­ signs Because of III Health When Trip to Asheville self the most loved. Already the language of affection Fails to Aid Him," The New York Times , February 4, has been exhausted." See "Mr. Taft's Place in All 1930, p. 2. Hearts," Literary Digest, March 22, 1930, p. I 5; "Wil­ 6 See Valerie Jean Conner, Tbe National War Labor liam Howard Taft," The World, March lO, 1930, p. to ("Few Board: Stability, Social Justice, and the Volun­ men have had his opportunity to watch the attitude of the tary State in World War I (University of North American people ripen over a period of so many years into Carolina Press 1983). a more universal feeling of warm affection and deep con­ '''Chief Justice Taft," Los Angeles TImes, July 2, 1921 , fidence.") p. 4: Affection for Taft transcended partisan and even Peculiarly enough, Chief Justice Taft has WILLIAM HOWARD TAFT 69

enjoyed a vastly greater popularity since he University Press 1953). retired from the presidency than during the IJ Taft readily admitted that " [ have great difficulty period when he was the nation's Chief Execu­ myself in the matter" of "judicial style." Taft to tive. The tolerant manner in which he en­ Clyde B . Aitchison, December 4, 1925, Taft Papers, dured defeat, the unselfish support he gave to Reel 278. Taft wrote plaintively to Holmes in appre­ the man who had defeated him for the presi­ ciation of Holmes' opinions: "When [ read them, I dency, the self-effacement which he practiced marvel. They read so well and so easily and 1 ask why during the stirring months of the war period, can't I, but 1 can't." Letter to Oliver Wendell Holmes, the logic which he brought to bear in support­ May 6, 1927, Holmes Papers, Reel 38. And he con­ ing the cause of right and justice, both while fes sed to Holmes that " I regard your power ... to the fighting was in progress and during the concentrate on the point in few words with admiration peace negotiations-all these things were and awe." Holmes Papers, Duckell & Co. v. United noted by the American people and remem­ States, 266 U.S. 149 (1924). bered . The almost unanimous approval which 14 Sutherland's opinions, although expressing the same greeted his appointment, both by the Senate general conservative vision as Taft's, are by contrast and by the country at large, goes far to dis­ baldly ideological and so remain in the canon, if only prove the theory that republics are ungrateful as foil s. or that they have short memories. " "William Howard Taft," Los Angeles Times, March 10, 1930, p. 4. See Stephen Bonsai, "The Man Who The perception that national public opinion strongly Served Us-Taft," World's Work , April 1930, p. 79: favored Taft was widely shared. See. e.g. . "Chief Jus­ "While as Chief Justice of the United States Mr. Taft tice Taft," The Literary Digest, July 16, 1921 , p. J3 . delivered several notable opinions of a pioneering qual­ Even The New Republic observed that "The press greets ity, it is certain that his words will not be studied and Mr. Taft's appointment with almost universal acclaim." pondered over as, say, the decisions of Marshall, of "Mr. Chief Justice Taft," The New Republic. July 27, Taney, or even of Fuller." 1921, Volume 27, p.230. 16 Bonsai, "The Man Who Served Us- Taft," World's 8 "Taft Gained Peaks in Unusual Career," Th e New York Work , April 1930, p. 79. The Los Angeles limes opined Times , March 9, 1930, p. 27. The New Republic char­ that Taft's "name will . . . be ... connected with . .. the acterized the remarkable shape of Taft's career in this speeding up and modernizing of the Supreme Court way: and its reorganization to cope fully with its work. Directly and indirectly, Taft exercised a profound in­ It can be said of William Howard Taft that at fluence on court procedure, and if the law's deJay, of the moment when he leaves the Supreme Court which complaint has been made from time immemo­ his reputation with the American people is rial, shall ever cease to be a subject of complaint it will undoubtedly higher than ever before. His tenn be in large part due to him. " "William Howard Taft," as President saw a steady diminution in his Los Angeles Tim es, March 10, 1930, p. 4. prestige which was reflected in the dismal fail­ 17 Judge Harry A. Hollzer, quoted in "Jurist Here Adds ure of his candidacy in 1912, at a time when, Tribute," Los Angeles Times, March 12, 1930, p.2. according to the general political custom of 18 "Two Chief Justices," Washington Post, February 4, America, he should have had an almost auto­ 1930, p .6. See "Chief Justice Taft," The Baltimore matic reelection. Since then, by his modesty, Sun , February 4 , 1930, p.14. geniality and unflagging energy in his work, 19Quoted in "Taft's Life Praised as Truly American," he has rehabilitated himself to an extent which The New York limes, March 9, 1930, p.l. Recall that no one would have ventured to predict eigh­ even during his campaign for the presidency in 1908, teen years ago. Taft averred that, "Speaking generally, 1 believe the greatest question now before the American public is "The Week," The New Republic. volume LXI, Febru­ the improvement of the administration of justice, civil ary 12, 1930, p. 310. and criminal, both in the matter of its prompt dis­ 9 "Chief Justice Taft," New York World, February 4, patch and the cheapening of its use." "Taft Wants 1930, p.IO. Quick and Cheap Justice," The New York Times, August 10 "Judiciary: Hughes for Taft," Time Magazin e. Vol­ 2, 1908, p.1. ume XV, No. 6, February 10, 1930, pp. 11-12. 20 Felix. Frankfurter, "Chief Justices 1 have Known," in II During the period from October 1922 through July Felix Frankfurter on the Supreme Court, pp. 1929, wben Sutherland was on the Court, he authored 487-88 (Belknap Press of Harvard University Press 142 opinions for the Court. Taft, in contrast, wrote 1970). Frankfurter credited Taft for adapting the fed­ 222 opinions for the Court during that same period. eral jud icial system "to the needs of a country that had During the six tenns between October 1923 and July grown from three million to a hundred and twenty 1929, when both Butler and Sanford were on the Court, million." they authored, respectively, 153 and 123 opinions for 21 See John A. Eagle, "Monopoly or Competition: The the Court. Taft wrote 176. Nationalization of the Grand Trunk Railway," The 12 Holmes to Harold J. Laski, January IS, 1922, in Canadian Historical Review, March 1981 , Volume Mark DeWolfe Howe, editor, I Holmes-Laski Let­ LXlI, pp. 3-20; A.W. Currie, The Grand Trunk Rail­ ters: The Correspondence of Mr. Justice Holmes way of Canada (University of Toronto Press 1957); and Harold J. Laski, 1916-1935, p. 398 (Harvard Leslie T. Fournier, Railway Nationalization in 70 JOURNAL 1998, VOL. I

Canada: The Prohlem of The Canadian National 39 Augustus Hand to Taft, September 18, 1929, Taft Railways (MacMillan Co. 1935). Curiously enough, Papers, Reel 314, On Taft's ability to rally the Court, Pierce Butler was at that time appearing before the see Henry J. Friendly, "Review of The Unpublished arbitration panel as counsel for the Canadian goverll­ Opinions of Mr. Justice Brandeis," 106 Harvard Law ment. Review 766,768 (1958). Friendly was Brandeis' law 22 McKenna to Taft, July 30, 1921, Taft Papers, Reel clerk during the 1927 Term. See also David 1. Danelski, 23 L McKenney was sixty-nine years old and had been "The Influence of the Chief Justice in the Decisional an employee of the Court for the past fifty-two years. Process." in Walter F. Murphy & c. Herman Pritchett, 23 36 Stat. 1152 ch. 231 (1911). eds., Courts, Judges, and Politics; An Introduc­ 24}6 Stat. 1153 ch. 231 (1911), tion to the Judicial Process, pp.695-703 (Random 25 William R. Stansbury to Taft, July 30, 1921, Taft House, Inc. 1979). Papers, Reel 231. 4Q Robert J. Steamer, Chief Justice: Leadership and 26 Taft to Helen Herron Taft, August 3, 192 J, Taft the Supreme Court, pp. 186-87 (University of South Papers, Reel 28, Carolina Press 1986). " Jd. "Taft to H.A. Morrill, December 2, 1908, quoted in 28 Taft to William R. Stansbury, August 3, 1921, Taft Alpheus Thomas Mason, William Howard Taft: Papers, Reel 231. Chief Justice, p. 33 (Simon and Schuster 1964). 29 Taft to Helen Herron Taft, August 3, 1921, Taft 42 Taft to Alfred C. Meyer, January 28, 1924, Taft Papers, Reel 28. Papers, Reel 260. 3D Brandeis to Felix Frankfurter, March 6, 1925, in 43 "The Courts and Mr. Taft on Labor," American Melvin l. Urofsky and David W. Levy, eds" "Half Federationist, March 1921, p. 220. See Charles Willis Brother, Half Son:" The Letters of Louis D. Thompson, "The Two Tafts," The American Mer­ Brandeis to Felix Frankfurter, p. 196 (University cury, Volume I, No.3, March 1924, pp. 315-19: U[I]n of Oklahoma Press 1991). politics Taft was ever all thumbs.. . The general )1 Herbert Little, "The Omnipotent Nine," The Ameri­ dislike of Taft, which seems so queer a thing when we can Mercury, Volume XV, No, 57, September 1928, p. look back upon it. . rested upon the fact that 'he 48. calUlot ope his mouth but out there flies a blunder. ,,, 32 Holmes to Sir Frederick Pollock, October 2, 1921, in .. William Borah, quoted in "Taft Chief Justice of Su­ Mark DeWolfe Howe, ed., 2 Holmes-Pollock Let­ preme Court; Confirmed 60 to 4," New }'Ork Hera/d, ters: The Correspondence of Mr. Justice Holmes July I, 1921, p. I. and Sir Frederick Pollock 1874-1932, p,79 45 Speech of the Chief Justice, The Chicago Bar Asso­ (Harvard University Press 1941), ciation Record, Volume 5, No.3, December 1921, p. )3 Holmes to Baroness Charlotte Moncheur, June 2, 9, 1922, Holmes Papers, Reel 26, Frame 76 I. 46 William Allen White, Masks in a Pageant 333-34 34 Brandeis to Felix Frankfurter, June 28, 1923, in (MacMillan Co, 1928). Melvin L Urofsky, "The Brandeis-Frankfurter Con­ 47 In his address accepting the 1912 Republican nomi­ versations," 1985 Supreme Courl Review 299, 313. nation for the presidency, for example, Taft proclaimed: 35 Holmes to Sir Frederick Pollock, February 24, 1923, in Mark DeWolfe Howe, ed" 2 Holmes-Pollock Let­ During this admmistration we have given spe­ ters: The Correspondence of Mr, Justice Holmes cial attention to the machinery of govern­ and Sir Frederick Pollock 1874-1932, pp.113-14 ment with a view to increasing its efficiency (Harvard University Press 1941). Brandeis agreed: and reducing its cost. ... I have secured an "Things go happily in the Conference room with appropriation for the appointment of an Taft-the judges go home less tired emotionally and Economy and Efficiency Commission, con­ less weary physically, than in \\tnite'g days." Brandeis sisting of the ablest experts in the country, 10 Felix Frankfurter, August 6, 1923, in Melvin I. and they have been working for two years on Urofsky, "The Brandeis-Frankfurter Conversations," the question of how the Government depart­ 1985 Supreme Court Review 299, 322. ments may be reorganized and what changes 36Brandeis to Frankfurter, August 6, 1923, in Melvin L can be made with a view to giving them greater Urofsky, "The Brandeis-Frankfurter Conversations," effectiveness for governmental purposes on 1985 Supreme Court Review 299, 321. the one hand, and securing this at consider­ "Stone to Thomas Reed Powell, January 30, 1940, ably less cost on the other. Stone Papers. "In May 1921, Taft characterized the office of Chief Speech of William Howard Taft Accepting the Justice in this way in the course of eulogizing the de­ Republican Nomination for President of the United ceased Chief Justice White: "The Chief Justice is the States, Senate Document No, 902, 62,d Congress, 2d head of the court, and while his vote counts but one in Session (I912). the nine, he is, if he be a man of strong and persuasive '3 Public Law No. 298, 42 Stat. 837 (1922). personality, abiding convictions, recognized learning, '9 Felix Frankfurter and James M. Landis, "The Busi­ and statesmanlike foresight, expected to promote team­ ness of the Supreme Court of the United States-,-A work by the court, so as to give weight and solidarity Shldy in the Federal judicial System-Part VI: The to its opinions." "Chief Justice White," in James F. Conference of Senior Circuit Judges," 40 Harvard Vivian, William Howard Taft: Collected Editori­ Law Review 431,456 (1927). als 1917-1921, p. 581 (Praeger 1990). 5Q The Act provided, however, that the Senior Circuit WILLIAM HOWARD TAFT 71

Judge of the designated judge must "consent" to the thing far inferior to the actual law would have re­ assigrunent, and the Senior Circuit Judge of the Circuit sulted."); "Courageous Expression by Chief Justice to which the designated judge is assigned must certify Taft," 6 Journal of the American Judicature Society the need for judicial assistance to the Chief Justice. 67 (1922); "A New Era Opens," 6 Journal of Ameri­ Although federal judges were preeminently local, there can Judicature Society 67 (1922). Taft later said that did exist two precedents for the power temporarily to "At my suggestion the bill contained a provision for a transfer judges. The first was the Act of October 3, meeting of a council of judges annually, to consist of 1913, Public Law No. 18,38 Stat. 203, which autho­ the Chief Justice and the senior circuit judge of each rized the temporary transfer of judges to the Second circuit, to take into consideration the arrears, where Circuit in order to alleviate congestion in New York they are, and how they can be provided for by assign- City, and the second was the authorization to appoint ment of who have free time to the burdened circuit judges on the Commerce Court for service on districts. Taft to Frank Hiscock, April 12, 1922, any circuit court. Public Law No. 218, 36 Stat. 539, Taft Papers, Reel 241. 540. Felix Frankfurter and James M. Landis, "The 5·See, e.g., '''It Came to Pass-'," 7 Journal of the Business of the Supreme Court of the United States­ American Judicature SOciety 83, 84 (1923). A Study in the Federal Judicial System-Part VI: The 51"Rally Support for Daugherty Bill: Bar of Entire Conference of Senior Circuit Judges," 40 Harvard Country Asked to Lend Assistance in Campaign for Law Review 431 , 447-48 (1927). Effective Organization of United States Judiciary," 5 jI The Act also authorized the appointment of twenty Journal of the American Judicature Society 120 (1921). four new district court judgeships, which represented "Felix Frankfurter, "Chief Justices I have Known," in an increase of about twenty five percent in the number Felix Frankfurter on the Supreme Court 487-88 of authorized district court judgeships. At the time (Belknap Press of Harvard University Press 1970). federal dockets were "particularly swamped" with liti­ 5""The First Conference," 9 ABAJ 7 (1923)< gation resulting from the cancellation of wartime con­ 60Henry D. Clayton, "Popularizing Administration of tracts and with cases arising from the enforcement of Justice," 8 ABAJ 43, 46 (1922) (quoting Judge prohibition. See Felix Frankfurter and James M. Landis, Sheppard). "The Business of the Supreme Court of the United 61Id. States-A Study in the Federal Judicial System-Part 62Taft to E. Cockrell, May 5, 1927, Taft Papers, Reel VI: The Conference of Senior Circuit Judges," 40 291. Harvard Law Review 431, 444 (1927). 6JWilliam Howard Taft, "The Attacks of the Courts 52 William Howard Taft, "Adequate Machinery for Ju­ and Legal Procedure," 5 Kentucky Law Journal 3, 16- dicial Business," 7 ABAJ 453,454 (1921). 17 (1916). "A judicial force of Judges ought to be 5lTa ft to Charles D. Hillis, February 5, 1923, Taft under the executive direction of somebody, so that the Papers, Reel 250. number of Judges needed to meet the arrears of busi­ "See, eTexas L Rev. 445, 445 (1924). "The Attacks of the Courts and Legal Procedure," 5 65Wi lliam Howard Taft, "The Courts and the Progres­ Kentucky Law Journal 3, 13-15 (1916). For a good sive Party," Saturday Evening Post, Vol. 186, No. 39, short summary of the history of the movement to March 20, 1914, p. 47. "What is needed," wrote Taft, improve the administration of justice in the United "is a General Director who shall be able to mass judicial States, beginning with Roscoe Pound's epie-making force temporarily at places where the arrears are great­ paper, "The Causes of Popular Dissatisfaction with est and thus use what is available to do the whole the Administration of Justice," 29 Am. Bar Ass 'n. judicial work. There ought to be more unity in the Rep. 395 (1906), and in particular of the history to application of Judges at the strategic points where establish judicial councils prior to 1922, see Felix application is needed." Taft to Angus Wilton McLean, Frankfurter and James M. Landis, "The Business of December I, 1924, Taft Papers, Reel 269. the Supreme Court of the United States-A Study in 66William Howard Taft, "The Attacks of the Courts the Federal Judicial System--Part VI: The Conference and Legal Procedure," 5 Kentucky Law Journal 3, 16 of Senior Circuit Judges," 40 Harvard Law Review 431, (19\6). "Somebody ... ought to be made the chief of 434-43 (1927). the body of Judges who cover a certain territory and "Note, "Unification of the Judiciary: A Record of have the power to assign the business, so that each Progress," 2 Texas L. Rev. 445, 452-53 (1924). See Judge shall be bound to follow that assignm~nt There

Felix Frankfhrter and James M. Landis, "The Business is not the slightest reason why the same strategy < of the Supreme Court of the United States-A Study in should not be secured as you fmd in large business the Federal Judicial System-Part VI: The Conference corpora tions." Taft to Harry A. Hollzer, February 14, of Senior Circuit Judges," 40 Harvard Law Review 1928, Taft Papers, Reel 299, 431,455 (1927); "New Law Unifies Federal Judiciary: 67William Howard Taft, "Address of the President," 39 Chief Justice Made Executive Head of Judicial Coun­ American Bar Association Report 359, 383 (1914). Cil," 6 Journal of the American Judicature Society 69 68Myers v. United Stales, 272 U.S. 52, 122 (1926)< (1922) ("were it not for the great esteem felt for the 69 Taft was not alone in tllis conception. Thus Frank­ Chief Justice, and for his tact and persistence, some- furter and Landis write: 72 JOURNAL 1998, VOL. I

Hundreds ofjudges holding court in as many of the breaking down of some of the District or more districts scattered over a continent must Judges under the burden they have to carry, be subjected to oversight and responsibility as and I wish you to know that we here at the parts of an articulated system of courts. The judi­ Nation's Capital are fully conscious of the ciary, like other political institutions, must be di­ debt that we and the country owe to you Dis­ rected. An executive committee of the judges, trict Judges. with the Chief Justice of the United States at its head, is a fit and potent instrument for the task. 77Ta ft to William B. Gilbert, December 15 , 1924, Taft Papers, Reel 270. Felix Frankfurter and James M. Landis, "The Business 78See, e.g., Fmnk S. Dietrich to Taft, January 12, 1927, of the Supreme Court of the United States-A Study in Taft Papers, Reel 288; Augustus Hand to Taft, May the Federal Judicial System-Part VI: The Conference 31, 1927, Taft Papers, Reel 292. of Senior Circuit Judges," 40 Harvard Law Review 7"Learned Hand to Taft, March I, 1923, Taft Papers, 431 , 456 (1927). Reel 251. A year later, Hand wrote to Taft: 7°Taft to John A. Peters, October II , 1927, Taft Pa­ pers, Reel 295. See also Joseph Buffington to Taft, As I have had occasion to tell you before, November 16, 1927, Taft Papers, Reel 296; Taft to feel I have a vested interest in your being Ferdinand A. Geiger, November 17 , 1927, Taft Pa­ Chief Justice, because you are the first Chief pers, Reel 296; Taft to William N. Runyon, March 12, Justice that ever recognized such things as Taft Papers, Reel 300. District Courts except when they were offi­ "Peter G. Fish, "William Howard Taft and Charles cially brought to their attention to reverse. Evans Hughes: Conservative Politicians as Chief Judi­ cial Reformers," 1975 Supreme Court Review 123. Learned Hand to Taft, February 8, 1924, Taft Papers, "Taft to John F. Sater, August 27, 1921 , Taft Papers, Reel 261. Reel 233. 8°Taft to Frank S. Dietrich, January 17, 1927, Taft 73Taft to Robert Taft, October 2, 1927, Taft Papers, Papers, Reel 288. Reel 295. 8lTaft to Robert Taft, October 2, 1927, Taft Papers, " Taft to Horace Taft, December 30, 1921, Taft Pa­ Reel 295. pers, Reel 237. Taft wrote: "I am trying to get more 82By 1925, for example, when Congress was appropri­ solidarity of action among the Federal Judges, so that ating needed funds for "the purchase of law books ... they shall feel that we are all worki.ng toward the same for United States judges, district attorneys, and other end." Taft to Helen Manning, March 25, 1923, Taft judicial officers," it subjected the distribution of the Papers, Reel 252. funds "to the approval of the conference of senior ?STaft to Frank S. Dietrich, January 17, 1927, Taft circuit judges." Public Law No. 631 , 43 Stat. 1333 . Papers, Reel 288. See James Morton to Taft, June 23, Illustrative of the way that Taft personally used the 1925, Taft Papers, Reel 275: Conference may be found in his campaign to authorize the appointment of extra federal judges in New York I just received and read the recommenda­ City. In a letter to Charles Evans Hughes, Taft asked tions of the Judicial Conference. I wish you him to petition Congress for the additional judges, could be a District Judge for a while just to adding "I shall do what I can here, and I shall get the know what excellent work you and the Con­ Conference of Senior Circuit Judges. . to take ac­ ference are doing. The recommendation last tion." Taft to Charles Evans Hughes, March 25, 1925, year about liquor cases,-that the Federal Taft Papers, Reel 272. Beginning in 1925, the Con­ Courts should entertain only the more im­ ference repeatedly recommended the creation of these portant ones,-was of the greatest assis­ judgeships. The recommendations figured prominently tance in dealing with the liquor situation. in Congress's eventual authorization of three addi­ It gave the District Judges solid standing tional judges for the Southern District of New York. ground from which to urge that course on See Public Law No. 820,45 Stat. 1317 (1929). See 70 the United States Attorneys, who are rather Congressional Record, 70 th Cong., 2nd Sess., pp. 1742- inclined to prosecute everybody for every­ 1748 (January IS , 1929). In fact frequent references thing lest they be accused of favoritism or to the Conference led Representative George Graham remissness. to exclaim, "We did not surrender our legislative func­ tion when we created" the Conference. Id. at 1743. 76Taft to John S . Partidge, January 22, 1925, Taft 83Report of the Fourth Conference of Senior Circuit Papers, Reel 271. See Taft to John M. Cotteral, May Judges called by the Chief Justice pursuant to tbe Act 19, 1926, Taft Papers, Reel 282: of Congress of September 14, 1922, p. 38, Taft Pa­ pers, Reel 618. There are many indications of the It is too bad that we in the Court here in influence of the Conference's recommendations. Pub­ Washington do not have greater opportunity lic Law 373, 46 Stat. 774, for example, authorized the to meet in the flesh the Judges who are on the hiring of law clerks for circuit judges. 71 " Cong., 2"d firing line in the Federal JUdiciary, and who Sess. (June 17 , 1930). The Conference had recom­ have so much labor thrust on them which they mended such a law in 1927, 1928, and 1929, and its do not have assistance enough properly to recommendations figured prominently in the legisla­ dispose of. I am constantly afraid of hearing tive history of the Act. See House Report No. 30, 7 J" WILLIAM HOWARD TAFT 73

Cong., 2nd Sess. (December 12, 1929); Senate Report ally investigated the physical condition of Judge Sessions.") No. 830, 71" Cong., 20d Sess. (May 29, 1930), In the For a similar example of Taft going outside the recom­ single month of March 1927, the 69th Congress, in mendations of the Conference, see Public Law No, 663, direct response to the recommendations of the Con­ 45 Stat. 1081 (1929), which created an additional judge­ ference, created new judgeships in the Northern Dis­ ship in the Southern District ofFiorida. The Senate Report trict of California (Public Law No, 739, 44 Stat. 1372), on the bill relies heavily on Taft's personal recommenda­ the District of Maryland (Public Law No, 700, 44 Stal. tion, Senate Report No. 631, 70th Cong, 1st Sess, (March 1346), the Western District of North Carolina (Public 26, 1928), Another example is Public Law No. 528, 43 Law No. 693, 44 Stat. 1339), the Eastern District of Stat. 1098, March 2, 1925, which authorized the appoint­ Pennsylvania (Public Law No. 701,44 Stal. 1347), ment of a district judge for the District of Minnesota. The the Western District of New York (Public Law No, authorization was necessary because of the unexpected 735, 44 Stat. 1370), the Eastern District of Michigan suicide of Judge John McGee, Although the Conference (Public Law No. 747, 44 Stal. 1380), and the District had not recommended the authorization, the House Re­ of Connecticut (Public Law No, 703, 44 Stat. 1348), port rel ied upon Taft's personal endorsement. House Re­ S'Thus in March 1927 Congress also created an addi­ port No, 1540, 68th Cong., 2nd Sess. (February 20, 1925). tional judgeship for the Northern District of New York 87faft to Frank H. Hiscock, Apri l 12, 1922, Taft Papers, Public Law No, 741, 44 Stal, 1374, This judgeship had Reel 241. not been recommended by the Conference, but the "Taft to Horace Taft, March 30, 1922, Taft Papers, Senate Report on the bill quotes at length from a letter Reel 240, by John Sargent, the Attorney General, who states: 89Taft to Charles M. Hepburn, April 10, 1923, Taft Papers, Reel 252, Persistence, wrote Taft, "is the Although the northern district of New only way of getting anything through Congress." York was not included among the districts for 90Taft to Horace Taft, October 6, 1921 , Taft Papers, which the conference of senior circuit judges Reel 234, has recommended addit ional district judges, 91 Bearing Before the House Committee on the Judi ­ Chief Justice Taft, who presides over the con­ ciary on H.R. 10479, 67th Cong" 2nd Sess., Serial 33, ference, has, since the last meeting of the March 30, 1922, p, I 0, conference, specially examined the situation "Hearing Before Subcommittee of House Committee in the northem district of New York and con­ on Appropriations in Charge of Defi ciency Appro­ cluded that an additional district judge is needed priations on the Second Deficiency Appropriations there, The Chief Justice says: Bill, 69th Cong., 1st Sess" May 13, 1926, p, 766, The next month Taft was "delighted" to notify George W, "I have been examining the statistics of Anderson of the First Circuit that "the Court of Ap­ the cases in the northern district of New York peals has ruled in our favor" and authorized the appro­ and in the western district, and I am bound to priation. Taft to George W. Anderson, June 4, 1926, concede that the showing is strong for an ad­ Taft Papers, Reel 282, See Public Law No. 492, 44 ditional judge in the northem district as well StaL 84 1, 859 (July 3, 1926), as in the western district." "Taft to Charles P. Taft, 2nd, January 27 , 1924, Taft Papers, Reel 260. Senate Report No. 155 7, 69th Congress, 2nd Sess, 94"McReynolds is a Democrat and knows many of the (February 27,1 927), Senators," Taft explained. " Sutherland has been a s5Thus when Congress authorized the appointment of Senator, and Van Devanter is one of the most forc ible two extra judges for the Eighth Circuit as recommended of our Court and most learned on questions of jurisdic­ by the Conference, Pub. Law No. 555, 43 StaL 1116, tion," Taft to Thomas W, Shelton, January 31, 1924, Taft personally testified in favor of the bill, Senate Taft Papers, Reel 261 Taft was quite clear "that in Report No, 705, 68th Cong" 1st Sess. (June 3, 1924), my judgment it will help the passage of both bills if I do pp, 1-5, Bis personal support figured prominently in not make myself prominent in their advocacy." congressional debates. See 66 Congressional Record, "Hearing Before the Committee on the Judiciary of pI. 5, 68th Congress, 2nd Sess., 5202 (March 2, 1925). the House of Representatives on H.R. 8206, 68th The day after the passage of the bill Judge William Cong., 2nd Sess., December 18, 1924, Serial 45. As Kenyon of the Eighth Circuit wrote Taft that "there is Taft said in the context of his proposed legislation no do ubt in my mind as to who is respons ible for its that would enable fede ral courts to merge law and eq­ enactment, and 1 am therefore writing you than king uity and promulgate rules of procedure, "I am deter­ and eongratulating you on behalf of this Circuit. Thou mined to push a movement for the betterment of the art the man," William Kenyon to Taft, March 4, proeedure in the Federal courts. I suppose I weigh Taft Papers, Reel 272, down such reform by my advocaey of it, in aro using the for example, Taft was willing to recommend that opposition of certain elements, especially in the Senate, the Congress authorize an additional judge for the West­ but 1 don't know why that should prevent my initiating ern District of Michigan to compensate for the incapaci­ matters when nobody is likely to do so." Taft. to Horace tated Clarence Sessions, even though the Conference had Taft, April 17, 1922, Taft Papers, Reel 241. not made any such recommendation. See Public Law 423, 96 Chief Justice William H. Rehnquist, "1996 Year-End 43 Stat. 949; H.R. Report No. 1427, 68th Cong. 2nd Sess. Report on the Federal Judiciary," The Third Branch, (f'ebmary 10, 1925) ("This bill has the approval of Chief Vol. 29, No. 1 (January 1997), at 1, 6, Justice Taft, who, according to the hearings, has person- 97Public Law No. 563, 44 Stat. 1022 (1927). 74 JOURNAL 1998, VOL. I

98Joseph Coursey to Taft, November 23, 1925, Taft Pa­ the bench of which I am a member. I am strug­ pers, Reel 278. gling to fall into the customs and requirements of Wfaft to Joseph Coursey, November 28, 1925, Taft Papers, that position. We have been warned in the Sen­ Reel 278. ate of the United States what our narrow function ,ooJoseph Coursey to Taft, December 15, 1925, Taft Pa­ is and with due respect to that warning, I am go­ pers, Reel 278. ing to confine myself to a written manuscript. 10iTaft to William D. Mitchell, December 20, 1925, Taft Papers, Reel 278. ld. at 1-2. For press coverage of the speech, see "TaftAp­ 10'William Mitchell to Taft, January 8, 1926, Taft Papers, proves Laws to Clear Court Dockets," New York Tribune, Reel 279. February 19, 1922, p.13; "Taft Backs Bills to Speed Tri­ I03Taft to Albert C. Cummins, January II, 1926, Taft Pa­ als," The New York Times, February 19, p. 18. pers, Reel 279. II6Minneapolis Morning Tribune, July 18, 1921, in Taft I"'Albert C. Cummins to Taft, January 12, 1926, Taft pa­ Papers, Reel 626. pers, Reel 279. 117 Taft's commitment to this position is evident in the Can­ losWilliam Mitchell to Taft, March 3, 1926, Taft Papers, ons of Judicial Ethics that were approved by the ABA in Reel 280. July 1924. Lisa L. Milord, Tbe Development oftbe ABA 106Albert Cummins to Taft, March 5, 1926, Taft Papers, Judicial Code 131-143 (American Bar Association 1992). Reel 280. Taft had been appointed in February 1922 as the Chair of 107 Public Ledger, July 14, 1921, p.1. See Minneapolis the small ABA Committee charged with drafting the Can­ Morning Tribune, July 18, 1921, p.6. For a discussion of ons. See Cordenio Severance to Taft, February 4, 1922, Taft's career as a columnist, see James F. Vivian, William Taft Papers, Reel 238; Taft to Cordenio Severance, Febru­ Howard Taft: Collected Editorials 1917-1921 (Praeger ary 9, 1922, Taft Papers, Reel 239. Canon 23 explicitly 1990). provides: losAddress to NY Country Bar Ass'n, February 18, 1922, Taft Papers, Reel 590, p.2. A judge has exceptional opportunity to observe '09Taft to Clarence Kelsey, August 17, 1923, Taft Papers, the operation of statutes, especially those relat­ Reel 256. See Taft to Charles Evans Hughes, April 26, ing to practice, and to ascertain whether they tend 1926, Taft Papers, Reel 282 ("Bar Associations are formed to impede the just disposition of controversies; too often for merely social enjoyment and fraternization, and he may well contribute to the public interest with only a modicum of effort to ... exert a controlling by advising those having authority to remedy influence upon the legislative bodies for real reform mea­ defects of procedure, of the result of his observa­ sures in respect to courts and legal procedure.") tion and experience. llOElihu Root to Taft, September 9, 1922, Taft Papers, Reel 245. An early version of this Canon, drafted about June 1922, III"Adequate Machinery for Judicial Business," 7 ABAJ was even more explicit: 453 (1921). "'''The Chief Justice," 5 The Chicago Bar Association Judges have a peculiar opportunity to observe Record pp. 8-13 (December 1921). the operation of statutes, especially those relat­ 113 62 Congressional Record, pI. 3, 67th Cong., 2nd Sess., ing to practice, and to ascertain whether they tend pp. 2582-2583 (February 15, 1922). See "Taft's Public to impede the reasonable and just disposition of Speeches Criticized in the Senate," The New York Tribune, controversies; they should not be indifferent to February 16, 1922, p. 2. shocking results; and they may well contribute to 114 62 Congressional Record, pI. 3, 67th Cong., 2nd Sess., the public interest by advising both the people pp. 2582-2583 (February 15, 1922). Senator Harris also and their representatives of the result of their ob­ very much objected to Justice Clarke's recent speech urg­ servation and experience; there is no need of dif­ ing cancellation of the foreign war debt. See "Justice Clarke fidence in this respect, out ofa false fear of being Urges Prompt Cancellation of War Debt," Chicago Jour­ considered to be unduly interfering with another nal a/Commerce, February 9, 1922, p.l; 62 Congressional department of the Govenunent. Record, pt. 3, 67th Cong., 2nd Sess., pp. 2525-2526 (Feb­ Judges may well direct diligent effort toward ruary 14, 1922) ("I have the greatest respect and admira­ securing from proper authority such modifications tion for Justice Clarke . . . . However, I think that the of laws or rules tending, in their experience, to Justices of the Supreme Court of the United States should impede or prevent the reasonable and just dispo­ keep out of any matters that are political. ... I do not think sition of litigation, as will rectifY the evils dis­ it is the part of wisdom for a Supreme Court Justice to covered by them. publicly discuss matters to be decided by Congress.") (Re­ marks of Senator Harris). Charles Boston to Taft, June 8, 1922, Taft Papers, Reel Il5Address to NY County Bar Ass'n, February 18, 1922, 242. For the ABA's most recent standard on this subject, Taft Papers, Reel 590, pp. 2-3. Taft left no doubt about the see ABA Model Code 0/ Judicial Conduct (1990), Canon target of his remarks: 4(B), Comment I. 118S. 3151, 70th Cong., 1st Sess. (February 13, 1928). On It is a source of some embarrassment for me opposition to federal court diversity jurisdiction in the to rise here and not to talk to you as I would like South and West, see Tony A. Freyer, "The Federal Courts, to talk to you, free from the fetters of the office Localism, and the National Economy, 1865-1900," 53 which I hold .... I am struggling to be worthy of Business His/ory Review 343 (1979); Harry N. Scheiber, WILLIAM HOWARD TAFT 75

"Federalism, the Southern Regional Economy, and Public he gets his articles ready." Policy Since 1865," in David J. Bodenhamer and James I3ITaft to Henry W. Taft, April 21, 1928, Taft Papers, Reel W. Ely, Jr., Ambivalent Legacy: A Legal History of tbe 301. Soutb pp.69·104 (University Press of Mississippi 1984). 132Henry W. Taft to Taft, April 20, 1928, Taft Papers, Reel "·See 62 Congressional Record, 67th Cong., 2nd Sess., 301. Henry W. Taft also drafted a long report on behalfof pt. 5, p. 5108 (April 6, 1922) ("In my judgment we ought the ABA Committee on Jurisprudence and Law Reform, to abolish every United States district court in America; and managed to have the ABA Executive Committee go we ought to abolish entirely the United States Court of on record against the bi ll on April 24. Senator Copeland Appeals, and leave nothing of our United States judicial had the Executive Committee resolution, as well as the system except the Supreme Court ofthe United States. We report of the Committee on Jurisprudence and Law Re­ ought to give to State judges and State courts all the juris· fo rm, reprinted in the Congressional Record. 69 Congres­ diction.") See George Norris to G. Jay Clark, January 2, sional Record 8077 ·8080, pI. 8, 70" Cong., I" Sess., May' J 928, Norris Papers (" In fact, I have gone so far as to ad· 8, 1928. See also "An Unwise and Dangerous Measure," vocate the abolition of all Federal courts except the Suo 14 ABAJ266 (May I preme Court.") "Senate and Courts, The New York Times, April 22, IWSee Senate Report No. 626, 70th Con g., 1st Sess. (March 1928, Section 3, p. 4. 27,1928). The Committee Report said simply, "The com· 134 69 Congressional Record 6379, pI. 6, 70th Cong., I" mittee can conceive of no reason why the district court of Sess., April 13, 1928. NOITis refused to hold hearings on the United States should have jurisdiction in these cases." the bill, saying that "it is a bill on which I think no particu· Id. at 2. lar hearings are necessary. It is entirely a legal proposi· '''Taft to Horace Taft, April 16, 1928, Taft Papers, Reel tion .... It is purely a question of practice that the lawyers 301. on the Judiciary Committee understand as well as do other 1?2Taft to George Wickersham, March 29, 1928, Taft Pa· attorneys." Id. at 6378. pers, Reel 300. "Senate and Courts," The New York Times, Apri l 22, I2JTaft to Newton Baker, April 5, 1928, Taft Papers, Reel 1928, Section 3, p. 4. 301. "(>69 CongreSSional Record 7421-7422, pt. 7, 70·h 124Taft to Newton Baker, April 19, 1928, Taft Papers, Reel Cong., 1" Sess., April 30, 1928. See "Whittli ng Away 301. at the Federal Tribunals," 14 ABA) 200 (1928). The I 25Taft to Casper Yost, Apri l 5, 1928, Taft Papers, Reel 30 I. ABA) e d itorial particularly objected to the Bil l's I2O"Federal Courts in Peril," SI. Louis Daily Globe·Demo­ repudiation of diversity jurisdiction: crat, April 10,1928, p. 18. See Casper Yost to Taft, April 10,1928, Taft Papers, Reel 301. Taft thanked Yost for the In an address at the San Francisco meeting editorials: "I feel sure that they wi ll attract attention." Taft of the American Bar Association, Chief Justice to Casper Yost, April 16, 1928, Taft Papers, Reel 30 I. Taft, while disclaiming any discussion oflegisla­ 127 Henry Taft was a named partner in the firm of tive policy, made the following pertinent remarks Cadwalader, Wickersham & Taft. by way of comment on the proposal to relieve I2sTaft to Henry W. Taft, April 5, 1928, Taft Papers, Reel the Federal courts of congestion by taking away 30 I. Two days later Taft wrote his brother: this j urisdiction:

What we desire is publicity. . . You ... might " I venture to think that tnere may be a strong enlarge on the fact that such a bil l as tbis would dissent from tlle view tnat danger of local preju· destroy the jurisdiction in those cases which dice in State Courts against nonresidents is at an McReynolds wrote from Oregon and from Ne­ end. Litigants from the eastern part of the coun­ braska on the right of the Catholics to maintain try who are expected to invest their capital in the separate schools and the right of the Germans to West or South will hardly concede the proposi­ maintain separate education in German.lfwe can tion that their interests as creditors will be as sure stir up the Germans and the Irish and the negroes of impartial judicial consideration in a Western to an appreciation of the importance to them of or Southern state as in a federal court. maintaining the jurisdiction of the trial courts, we can make the Democrats a bit chary of burning The materia I question is not so much whether their fmgers with such a revolutionary proposal. the justice administered is actually impartial and fair, as it is whether it is thought to be so by those Taft to Henry W. Taft, April 7, 1928, Taft Papers, Reel who are considering the wisdom of investing their 30 I. In a postscript, Taft added, "I am mistaken as to the capital in States where that capital is needed for German language cases. They came from the Supreme the promotion of enterprises and industrial and Courts of the States. The other came from the U.S. Dis­ commercial progress. No single element ... in trict Court." our govenunental system has done so much to I29See Henry W. Taft to Taft, April 18, J928, Taft Papers, secure capital for the legitimate development of Reel 301. enterprises throughout the West and South as the lJoSee Taft to Willis Van Devanter, April 15, 1928, Van existence ofFedern! courts there, with ajurisdic­ Devanter Papers: "They seem to be slow in New York to tion to hear diverse citizenship cases." take up the question. My brother Harry is preparing the argument for his editorial friends in New York, but he takes Taft had addressed the San Francisco meeting of the so long that they might pass the bill in the Senate before American Bar Association on August 10, 1922. His 76 JOURNAL 1998, VOL. I speech is reproduced in full in 6 Journal oj the American of Customs Appeals will try to prevent it, but I hope not." Judicature Society 36 (1922), and in 57 The American Law Taft to A,C, Paul, May II, 1928, Taft Papers, Reel 301. Review I (1923). In his address before the ABA, Taft had J4lpubl ic Law No. 914, 45 Stat. 1475, also been careful to observe: "But ofcourse the taking away 14628 U,S.C. Section 211 (1964 ed.). of fundamental jurisdiction from the Federal Courts is 147Glidden Co. v. Zdanok, 370 U.S, 530 (1962). The wi thin the power of Congress, and it is not fo r me to dis­ story is well told in Brenner v. Manson, 383 U.S. 519, cuss such a legislative pol icy." Id, at 11 526 (1966). Brandeis did not accept Taft's point about the impor­ "sThis same dilemma now occurs whenever the Su­ tance of diversity jurisdiction for facilitating the invest­ preme Court is itself called upon to promulgate rules. ment of eastern capital in western and southern states: So, for example, Justices Douglas and Black have dis­ sented from the Court's promulgation of Rules of Civil He speaks feelingly on the subject when­ Procedure on the grounds, inter alia, that rulemaking ever it comes up, I think his point is theoreti­ authority should be transferred to "the Judicial Con­ cal, like much of the economists mouthing of ference" in order to "relieve US of the embarrassment the "rational man." Of course, the bankers & of having to sit in judgment on the constitutionality still less the investors, do not give the subject of rules which we have approved and which as applied of litigation any thought when they make in given situations might have to be declared invalid." loans. 374 U.S. 869-70 (1963). Taft was, of course, a great supporter of increasing the rulemaking au thority of Brandeis to Felix Frankfurter, May 10, 1928, in Melvin the Supreme Court. l. Urofsky and David W. Levy, eds., "Half Brother, 149Th us Augustus Hand wrote Taft: "Our only rea I re­ Half Son:" T he Letters of Louis D. Bralldeis to lief is to get rid of petty criminal cases. If wc do not do Felix Frankfurter p. 33 I (University of Oklahoma this, this court which has been one of the most impor­ Press 1991). Frankfurter later published an article tant and interesting trial courts anywhere is bound, in thanking Norris for sponsoring S, 3151 and thereby my opinion, to sink to a very low level." Augustus provoking discussion about the appropriate scope of Hand to Taft, December 9, ]925, Taft Papers, Reel federal jurisdiction, in which he virtually reiterated 278. Exemplary is Henry Smith's letter to Taft ex­ (without attribution) Brandeis' co mments about di­ plaining why he was retiring as a federal distri ct judge: versity jurisd iction. Felix Frankfurter, "Distribution of Judicial Power Between United States and State I am not conscious of any disability, physical Courts," 13 Cornell L Q. 499, 499 n. l , pp. 521-22 or mental, and would dislike to be considered (1928). "shirking," but the burden o f the immense 137 69 Congressional Record 7422, pI. 7, 70tb Con g., I" crim inal business of a police character--espe­ Sess., April 30, 1928. ciall y the flood of liquor cases-has become 138S. 3151, 70th Cong., 1st Sess., May 8, 1928. See 69 very great. They involve no questions of le­ Congressional Record 8077, pI. 8, May 8, 1928. Some­ gal importance. Just one small criminal case how Taft managed to acquire a copy of a letter sent by after another, depending wholly upon testi­ Norris to Lewis Gannett of The Nation explaining the mony as to the facts. My egotism, 1 suppose, proposed change in S. 315 L In the letter Norris writes persuades me that I am a little thrown away that the "principal object of this bill is to take on such work, and impels me to think I had away the jurisdiction ofthe Federal Courts in the diversity better tum it over to a younger, stronger, and of citizenship. It is true the bill takes away some other ju­ less susceptible lnind. risdictions, but the other items we thought were of very little importance, However, there is no objection to amend­ Henry A.M. Smith to Taft, May 23, 1923, Taft Pa­ ing the bill so as to confine it entirely to diverse citizen­ pers, Reel 253, ship cases," Norris to Gannett, April 28, 1928. Taft sent 15Dlndeed, in appointing Taft, Harding announced that the letter to Willis Van Devanter, dryly commenting: "I he expected Taft to move rapid Iy to remedy the con­ send you herewith a copy of a letter written by Norris . gestion overtaking federal courts. "Additional Judges showing how closely he scrutinized the effect of his bill will be needed," he said, and "there may be need of before introducing it." Taft to Willis Van Devanter, May authorization of commissioners; sometbing must be 4, 1928, Taft Papers, Reel 30 l. done to relieve the courts of cases of the less criminal 13"Taft to Henry W. Taft, May 16, 1928, Taft Papers, Reel type. I mean cases growing out of the Volstead act." 302. Gus Karger to Taft, June 30, 192[' Taft Papers, Reel I4°Hearings Before the House Committee on the Judiciary 227. See George F. Authier, "Taft Continned by Sen­ on H.R. 6687, 70th Cong., lsI Sess" February I, 1928, p. ate for Post of Chief Justice," The Minneapolis Morn­ 6. ing Tribune, July 1, 1921, p, J. 141Taft to Thomas Walsh, May 8, 1928, Taft Papers, I5"The Federal Judicial Council," 2 Texas Law Review Reel 301. 458,461 (1924). The Conference no ted that this !42Jd. reform "would be expedient, provided the machinery !43Id, proposed is within constitutional limits." Id. J44Thomas Walsh to Taft, May 10, 1928, Taft Papers, J52Taft to Horace Taft, September 30, 1923, Taft Pa­ Reel 301 The next day Taft wrote to A.C. Paul that pers, Reel 257. "I sincerely hope that [Walsh] will be ab le to get the I51Taft to Albert Cummins, December 3, 1925, Taft bill through, I fear that the Chief Justice of the Court Papers, Reel 278; Taft to George Graham, December WILLIAM HOWARD TAFT 77

3, 1925 , Taft Papers, Reel 278. Ever tactful, Taft Wickersham Commission also endorsed legislation of sent a similar letter to Senator Thomas Walsh, the this kind. See George Cochran Doub and Lionel most influential Democrat on the Senate Judiciary Kestenbaum, "Federal Magistrates for the Trial of Committee. Taft to Thomas Walsh, December 3, 1925, Petty Offenses: Need and Constitutionality," 107 Uni­ Taft Papers, Reel 278. Walsh replied that "We are so versity of Pennsylvania Law Review 443, 452-53 near together in our ideas concerning the measure for ( 1959). the relief of the District Judges that there should be I59Caraway had been attempting to promote this re­ no difficulty in meeting each other's views." Walsh form for many years. See, e.g., Ashley Cockrill, "Trial preferred, however, to lodge the appointment power by Jury," 52 American Law Review 823 (1918). in the President rather than the District courts. "OWiliiam Howard Taft, "Delays and Defects in the Thomas Walsh to Taft, December 4, 1925, Taft Enforcement of Law in This Country," 187 North Papers, Reel 278. Taft responded that he did "not American Review 851, 857 (1908). wish to insist on the appointment by the District "'See, e.g., William Howard Taft, "The Courts and Judges," and that he would be "glad to talk further the Progressive Party," Saturday Evening Post, Vol. with you about it, because something ought to be 186, No. 39, March 20, 1914, p. 47: done." Taft to Thomas Walsh, December 5, 1925, Taft Papers, Reel 278. [S]tate legislatures have cut down the Taft also asked Augustus Hand for his comments power of the judge so that now in many states on the proposed legislation. Hand responded "Of course he has little more power to exercise than the [ am heartily in favor of such a plan though [ have not moderator in a religious conference. [n some looked up the law and do not know whether the ap­ states he is required to deliver a written charge pointment of magistrates for such a tribunal as you before argument of counsel, and in others he propose can be delegated to the courts." Augustus is permitted only to accept or reject the state­ Hand to Taft, December 9, 1925, Taft Papers, Reel ments of the law as given by counsel. His op­ 278. portunity for usefulness is curtailed, his im­ 154 67 Congressional Record 10942, pI. 10, 69 'h Cong., partiality made the subject of suspicion by I" Sess., June 8, 1926. Graham continued: most unwise restrictions, and the trial is turned over largely to the control of the lawyers and One of the great difficulties has arisen by rea­ the little restrained discretion of the jury. The son of the invasion of what belonged hereto­ result has been the perversion of justice in fore to the States alone through the adop­ jury trials, the infusion into them of much tion of the eighteenth amendment. By the maudlin sentiment and irrelevant consider­ adoption of that amendment a great burden ations, and a dragging out of the trial to such of police work was cast upon the Federal a length that if it be a civil case the cost of Government without furnishing that Govern­ litigation is greatly increased, and if it be a ment the proper equipment and machinery criminal case the public come to treat it as a for carrying on the work created by the adop­ game of wits and eloquence of counsel rather tion of the eighteenth amendment and the than the settlement of a serious controversy laws intended to carry it into effect. That is in a court of justice. Neither the dignity nor one reason why the business of the courts is the effectiveness of judicial administration suffering, why the courts are congested . under these conditions impresses itself upon the public. /d. lssJd. 162Taft to Helen Herron Taft, April 30, 1924, Taft 15"/d. at 10942-43. Papers, Reel 639. Taft continued: "Congressman Snell, 151 Francis G. Caffey to Taft, March 17, 1927, Taft who is the Chainnan of the Committee on Rules in the Papers, Reel 290. See, e.g.. Hearings before the House House, promised me that he could postpone the bill. I Committee on the Judiciary on H.R. 5608, H.R. 8230, saw the Chairman of the Judiciary Committee, Mr. H.R. 8555, and H.R. 8556, 70th Cong., 1st Sess., Janu­ Graham, and he thinks he can. I think I shall try and ary 17, 1928, p.13 (Testimony of Francis G. Caffey see Nick Longworth, the leader of the House, tomor­ referring to the 1923 recommendation of the Confer­ row, and with those agreed, I hope the plan of delay ence of Senior Circuit Court Judges). can be carried out. Jt will be a good deal easier to in­ '''Taft to Francis G. Caffey, March 21, 1927, Taft duce the President to veto the bill after the election Papers, Reel 290. "[B]ut my interest in it is deep," than before." continued Taft, "and I am glad to express the hope 16JTaft to Thomas W. Shelton, April 13, 1924, Taft Pa­ that united action will be taken to have the next Con­ pers, Reel 263. Taft noted that "[ am not in a position gress approach the subject and do the best it can." to appear before the committee myself, because were Pushed by Representative Walton Moore of Virginia, I to oppose it, it would only sharpen the eagerness of debate on expanding the powers of United States Com­ many to put it through." Taft to Gardiner Lathrop, April missioners continued sporadically throughout the de­ 27,1924, Taft Papers, Reel 264. On Bar opposition to cade. See, e.g., Taft to Walton Moore, March 21, the measure, see "The Effort to Limit Power of Fed­ 1927, Taft Papers, Reel 290; Walton Moore to Taft, eral Judges," 10 ABA} 303 (1924) (,The bill is part March 22, 1927, Taft Papers, Reel 290; Taft to Walton and parcel of a vicious plan to destroy the powers and Moore, March 23, 1927, Taft Papers, Reel 290. The independence of the Federal Jud!ciary, and to invade 78 JOURNAL 1998, VOL. I its constitutional prerogatives."); "An Unwise Mea­ 169Henry W. Taft to Taft, Marcb 28, 1925, Taft Papers, sure," 10 ABAJ 332 (1924) (" [T]he proposal is wholly Reel 273. indefensible.... The indisputably greater efficiency I7°Taft to Henry W. Taft, May 28, 1925, Taft Papers, of the federal courts as compared with the vast major­ Reel 274. Henry responded by sending to Taft a "copy ity of state courts, of English criminal courts as com­ of the proposed report of the [ABA) Committee on Ju­ pared with our own, rests on the power which the pre­ risprudence and Law Reform, which I prepared some siding judge has to control the proceedings.") Com­ weeks ago .... You will see from the report that I used pare "Letters of Interest to the Profession," to ABAJ your memorandum on the Caraway bill freely, adding 443 (1924) (letter of C. Floyd Huff) ("[A] jury trial is something of my own:' Henry W. Taft to Taft, May a mockery far more so under a system which permits a 29, 1925, Taft Papers, Reel 274, 1udge to make the last argument 10 the jury.") See also 17ISee Wright and Miller, 9 }-ederal Practice and PrQ­ id (letter of Alvab J. Rucker). Compare Harry Eugene cedure Civil 2d Section 2557 (1995); Jack B. Weinstein Kelly, "An Impending Calamity," 1 I ABAJ 65 (1925) and Margaret A. Berger, I Evidence Section 107 (Mat­ with "Curbing Federal Judges," 28 Law Notes 182 thew Bender 1994). See Quercia v, United Slates, 289 (1925). U,S. 466, 469 (1933) ("In a trial by jury in a federal !64Memorandum, December 2, 1924, Taft Papers, Reel court, the judge is not a mere moderator, but is the 639. governor of the trial for the purpose of assuring its 16'ld. at I proper conduct ... ") !66Id. at 6. I7lErnest Knaebel to Taft, July I, 1921, Taft Papers, ! 67!d. at 12. Reel 228. 168Taft to Henry W. Taft, March 27,1925, Taft Papers, 173"Taft Awed By Gaining Goal of His Ambition," New Reel 272. York Herald, July I, 1921, p.2. The Hughes Court and Constitutional Consultation

Barry Cushman*

Our conventional image of the Supreme imagination ofa great many extremely able and Court under Charles Evans Hughes calls to milld distinguished scholars. In my own impetuous the riddle of the Sphinx: What creature walks youth I have come to conclusions that differ on four feet in the morning, on two at noon, from theirs. But I will not belabor all of my rea­ and on three in the evening? The answer with sons for reaching those conclusions here, for it which Oedipus rescued the city of Thebes from is not my immediate objective to convert you a reign ofterrorwas, ofcourse, "Man": he crawls to my view of the matter. I ask only that you on all fours in infancy, stands erect on two legs suspend disbelief. Forget for a moment, if you in adulthood, and leans on a staff in old age. will, that the Justices invalidated New Deal ini­ The established story of the Hughes Court in­ tiatives because they thought them unwise verts the chronology somewhat, but the char­ social policy; forget that they later upheld fed­ acters are the same. In the mid-1930s, the crotch­ eral regulations only because the Court-pack­ ety Nine Old Men impetuously flouted the ing plan put the fear of God into them; forget popular will, eviscerating the New Deal. Chas­ that they continued to do so only because they tened by the disciplining hand: of a stem presi­ had seen the light. Forget that the Court's role dential father figure in 1937, a repentant Court under Hughes was entirely reactive: first ob­ was "reborn," then blossomed into beautiful structing, then surrendering to, the political but uncertain youth under Harlan Fiske Stone branches. This will, of course, be djsorienting. and Fred Vinson, and grew into mature adult­ But if all of this forgetting has not already ren­ hood under Earl Warren. dered you unconscious, it may enable us to The story has its charm, and a certain simple see the Hughes Court and its role in the New elegance. It has for many years captured the Deal saga in a new light. 80 JOURNAL 1998, VOL. I

Franklin Delano Roosevelt was the great­ dent that '''the Supreme Court is an indepen­ est politician of his age. But he was not the dent branch of government. '''3 As one account greatest constitutional lawyer. For example, he puts it, "he turned the President down flat."4 had rather unorthodox views on questions of Roosevelt related this story while defending the separation of powers. Early in his first term, his Court-packing plan to a doubtful Senator. the President approached Chief Justice Hughes "You see," the President sighed, "he wouldn't and suggested that the two of them form a sort co-operate. "5 of consultative relationship. As one contem­ There is, I suggest, no little irony in this porary account has it, Roosevelt "intimated that defense of the effort to pack the Court. For in he would like to talk over with the Chief Justice ways that Roosevelt apparently did not fully all his important plans concerning the general appreciate, but which others did, the Court was welfare, to the Court's slant on them before in fact cooperating with the political branches acting.'" Article IH, Section 2 of the Constitu­ in seeking to formulate constitutional solutions tion provides that the judicial power of the to the economic crisis of the 1930s. I hope to United States shall extend only to certain speci­ illuminate this phenomenon by sketching a se­ fied cases and controversies; and the Supreme ries of vignettes involving the fate of several Court had first declined a presidential request Depression-era programs. Through these I hope for an advisory opinion in George to show that within the channels prescribed by Washington's second term, when the first Presi­ Article III, and occasionally outside them as dent had sought counsel on specific questions well, the Hughes Court offered the Roosevelt ofinternationallaw.2 Hughes similarly demurred administration a distinctive form of consulta­ to Roosevelt's overtures, informing the Presi- tive relationship.

Senator Lynn Joseph Frazier (above) was one of the authors of the Frazier-Lemke Farm Debt Relief Act of 1934. The Act provided extraordinary relief to financially distressed farmers, allowing them to stay foreclosure proceedings for five years by paying a reasonable rental on the mortgaged land. When the Court overruled the Act, which had been widely criticized as poorly and hastily drafted, a sympathetic Louis D. Brandeis took pains in his majority opinion to suggest how it could be revised to pass constitutional muster. CHARLES EVANS HUGHES 81

Consider, for example, the Frazier-Lemke order to pass constitutional muster. Instead, he Farm Debt Relief Act of 1934. TIle Act provided listed five specific substantive rights of the extraordinary relief to financially distressed creditor that the Act infringed. 18 As one com­ farmers, allowing them to stay foreclosure pro­ ment in the Cornell Law Review noted, the ceedings for five years by paying a reasonable Court "definitely showed that it appreciated the rental on the mortgaged land. At any time dur­ situation which led to this drastic measure. ..It ing this period the debtor could take title to the indicated that similar legislation might be up­ land free and clear of any were found to preserve substantially

there would have been little and misgiving."l4 redrafting anything, Brandeis' point Roosevelt presciently that the crisis would have to be some respects loosely 51n,cm"'''''''{l with measures consistent with the amendment at the next session ofCongress."15 Constitution. And Brandeis' opinion in The Act's constitutionality was challenged Radford, with its meticulous discussion of the before the Court in the Spring of 1935 in the Act's constitutional infirmities, provided il lu­ case of Louisville Joint Stock Land Bank v. minating advice on how the statute ought to be Radford. 16 The Justices of the Supreme Court redrafted. were unanimously of the opinion that the Act And redrafted it was,21 Within ten days of transgressed limits imposed by the Due Pro­ the Radford decision Senator Frazier had intro­ cess Clause of the Fifth Amendment. Chief Jus­ duced a revised bill, and by the first of July the tice Hughes assigned the opinion to Justice Senate Judiciary Committee had issued a unani­ Louis D. Brandeis, who had great sympathy for mous favorable report with amendmentsY the plight of distressed small farmers and for "Their task was simplified," noted one observer, the objectives of the Act. 17 Brandeis did not "by the opinion pointing out the constitutional squander the opportunity presented by the as­ defects of the former Act. . . ."23 The result, as signment. He offered a thirty-page examination another put it, was a "more carefully drawn" of the history oflegislative attempts to provide statute that sought "to cure the flagrant de­ relief for distressed mortgagors, in which he fects summarized by the Court, "24 painstakingly identified the ways in which the When the bill reached the floors of the Frazier-Lemke Act enlarged these protections House and Senate, several legislators asked beyond anything previously sanctioned by the whether the revised bill had rectified the con­ Court. The Justice did not confine himself to stitutional deficiencies of the first Act, and its identifying one or two deficiencies of the Act many proponents uniformly professed confi­ and leave Congress guessing whether other dence that it had. 25 Senate judiciary Commit­ features of the Act would require revision in tee Chairman Henry Ashurst was one among 82 JOURNAL 1998, VOL. I

many who assured his colleagues that 'This serted, was "the result of a painstaking attempt bill is an earnest and, I believe, an able effort by Congress to comply with the decision of to meet the objection announced by the this Court holding the first Frazier-Lemke Act Court. . .without any attempt to defy the Court unconstitutional."32 After recounting the leg­ or to circumvent the Constitution ...."26 The islative history of the statute and detailing its old Idaho Progressive Senator William Borah improvements upon the old Act, 33 the debtor's testified that he had voted against the first brief concluded: "We are not here concerned Frazier-Lemke Act solely because he had with the decision of the Supreme Court holding thought it unconstitutional, but that he sup­ the original Frazier-Lemke Act unconstitutional. ported the revised bill, which he believed' could This is not the same act, but a new act drafted run the judicial gauntletY Floor amendments carefully so as to comply with the mandate laid removed or modified any remaining provisions down by the Supreme Court in that decision. "34 over which members had constitutional The Justices did vote to uphold the second qualms,28 and the bill then passed both cham­ Frazier-Lemke Act, and Hughes again assigned bers without a dissenting vote. 29 A comment the opinion to Brandeis. "The decision in the in the Columbia Law Review predicted that Radford case did not question the power of "Since those features of the original act Congress to offer to distressed farmers the aid which the Court found chiefly objection­ of a means of rehabilitation under the bank­ able have been eliminated, the revised stat­ ruptcy clause," wrote Brandeis. It had merely ute will probably be held consistent with due held that the first Act violated the Fifth Amend­ process .... "30 ment by infringing the five substantive rights When the constitutionality of the new Act there enumerated. "In drafting the new Frazier­ was challenged before the Court in Wright v. Lemke Act," Brandeis observed, "its framers Vinton Branch Bank31 in early 1937, the debtor sought to preserve to the mortgagee all ofthese emphasized the efforts of Congress to remedy rights so far as essential to the enjoyment of the faults of the first Act. The new Act, he as- his security. The measure received careful con- CHARLES EVANS HUGHES 83

In 1937 Dorothea Lange photographed a South Carolina sharecropper (left), and Russell Lee captured Iowa chicken farmers (opposite), for the Farm Security Ad ministration's photo documenta­ tion program. Tbe revised Frazier­ Lemke bill was upheld by the Court and provided much­ needed help to desperate farmers. sideration before the committees of the House concurred in the congressional judgment that and the Senate. Amendments were made there the provisions of the revised Act made no un­ with a view to ensuring the constitutionality of reasonable modification of the creditor's rights, the legislation recommended. The Congress and hence were valid.38 concluded, after full discussion, that the bill, as The Wright opinion was announced on enacted, was free from the objectionable fea­ March 29, 1937, at the height of the contro­ tures which had been held fatal to the original versy over the President's Court-packing pro­ Act."35 Brandeis explained how the new Act posal. That same day the Court upheld Wash­ remedied each of the defects his Radford opin­ ington state's minimum wage statute;39 two ion had identified, demonstrating at each step weeks later the Court upheld the application of a thorough mastery of the Act's legislative his­ the National Labor Relations Act to three manu­ tory. His opinion noted approvingly that "Em­ facturing concerns;40 in May the Court upheld phasis upon the deliberate intention to meet the unemployment insurance provisions of the the constitutional objections raised in Social Security Act as well as Alabama's [Radford] dominated the consideration of the complementary state unemployment compen­ bill in all stages."36 "Amendments to the bill sation act. 41 These decisions have often been subsequent to its introduction plainly characterized, erroneously in my view, as juris­ demonstrate[ d] careful intention to leave the prudential about-faces, reactions to such ex­ [creditor's] lien whollyunimpaired."37 The Court ternal pressures as Roosevelt's landslide elec- 84 JOURNAL 1998, VOL. I tion in 1936 andlor the Court-packing plan. In those cases, it is contended, the Court capitu­ lated to the New Deal in order to defuse the Court-packing threat. Could it not be contended with equal force that the Court's decision to uphold the second Frazier-Lemke Act was simi­ larly motivated? I don't think so. For even if we assume that the conventional explanation of the more fa­ mous decisions oftne spring of 1937 is correct, the Wright case stands on a different footing. For all of the other cases to which 1 have al­ luded were decided by votes of 5 to 4. Not­ withstanding the pressures brought to bear by the election and by the Court-packing plan, the Four Horsemen continued to cast votes against major initiatives for social reform in the most celebrated cases of the day. The vote in the Wright case, by contrast, was unanimous. Sutherland, Butler, Van Devanter, and McReynolds were all with the majority. Given their voting records before, the Court-packing crisis, it the extreme that they voted to uphold the sec­ ond Frazier-Lemke Act for any reason other than that they thought it was constitutional. A much more persuasive assessment was offered by a contemporary commentator in the Colum­ bia Law Review, who remarked, "this is a dra­ matic illustration ofthe manner in which by care­ ful draftsmanship Congress can overcome con­ stitutional objections when they are explicitly stated, and thus in a substantial measure attain the objectives sought by previously invalidated legislation."42 A second national regulatory initiative struck down by the Court in 1935 was section 9(c) of the National Industrial Recovery Act. 43 In an effort to stabilize petroleum prices in the face of a frenzy of wildcat drill ing in the East Texas oil fields, Congress authorized the Presi­ dent to prohibit interstate transportation of what was called "contraband" or "hot" oil-that oil produced in excess of the amount permitted by the law of the state of production. The Presi­ dent had done so by executive order, and had in tum delegated authority to promulgate ap­ propriate rules and regulations to the Secretary of the Interior. The President had by further executive order approved a Code afFair Com- CHARLES EVANS HUGHES 85 as Chief Justice Marshall expressed it, 'to fill 9(c) by the use of only a few words."54 The re­ up the details' under the general provisions quirement that the statute provide some stan­ made by the legislature."51 "If Congress shall dard to guide the President, observed another, lay down by legislative act an intelligible prin­ "relates merely to the form of legislative draft­ ciple to which the person or body authorized to ing. As pointed out by one writer, 'the effect of [act] is directed to conform," Hughes counseled, the decision might be very like that ofthe Stat­ "such legislative action is not a forbidden del­ ute of Uses which has been said merely to have egation of power. "52 added six more words to every English con­ Readers of the opinion were confident that veyance. '''55 the defects identified by Hughes could be "eas­ At the height of the Court-packing fight, ily remedied." As one commentator observed, Roosevelt would contend that the series of "That the decision of the Court was limited to decisions invalidating New Deal initiatives the pronouncement that the' primary standard' meant that the government was powerless in was too vague, in effect, suggests that there is the face of grave economic crisis. In early 1935, a proper way to accomplish the end desired, however, he was much less pessimistic. At a i.e., Congress may set out definitely such a stan­ press conference following the Court's deci­ dard. " 53 Representative Charles Wolvelion sion in the Hot Oil Cases, the President told maintained that a standard adequate to satisfy reporters, "You and I know that in the long run the Court "could have been placed in section there may be half a dozen more court decisions

In an effort to stabilize petroleum prices in t.he face of a frenzy of wildcat drilling in the East Texas oil fields (above), Congress authorized tbe President to prohibit interstate transportation of what was called "contraband" or "hot" oil-that is, oil produced in excess of the amount permitted by tbe law of the state of production. Chief Justice Charles Evans Hughes' opinion in the Hot Oil Cases struck down tbe regulatory initiative as an unconstitutional delegation of legislative authority to the executive, but went out of its way to advise Congress on how to remedy the statute's defects. 86 JOURNAL 1998, VOL. I

before they get the correct language, before of the Act were uniformly rebuffed in the lower they get things straightened out according to federal COurtS. 66 When an indictment for viola­ correct constitutional methods."56 Harold Ickes tion of the Act finally came before the Supreme surely took encouragement from a conversa­ Court in 1939, long after the Court-packing plan tion he had with Justice Roberts at a dinner had been decisively repudiated, the defendants party three days after the Court announced its did not even challenge the Act's constitution­ decision. Ickes recorded in his diary that Rob­ ality. And the unanimous opinion sustaining erts "assured me that he is entirely sympathetic the indictment was joined even by the two re­ with what we are trying to do in the oil matter maining Horsemen, Justices Pierce Butler and and that he hoped we would pass a statute that James C. McReynolds 67 would enable us to carry out our policy."57 Just as overproduction had created tumlOil Eleven days after the Court announced its in the petroleum industry, cutthroat competi­ decision in the Hot Oil Cases, Senator Tom tion in the bituminous coal industry exerted di­ Connally of Texas introduced legislation to rec­ sastrous downward pressures on prices, wages, tifY the problems identified in the Chief Justice's and working conditions. In an attempt to im­ opinion. 58 Connally, who affirmed his belief pose order on this chaotic situation, Congress that the Hot Oil Cases had been correctly de­ enacted the Guffey Coal Act of 1935. One part cided,59 assured his colleagues that his bill "was of the Act regulated the price at which coal drawn in collaboration with the legal authori­ moved in interstate commerce. 68 Another part ties of the Department of the Interior and has provided for regulation of wages, hours and been carefuily scrutinized by the oil produc­ labor relations at the mines.69 Members of both tion board and theitlegalstaff." They all joined houses were plagued by doubts about the con­ the members of the Senate Committee on stitutionality of the labor provisions, and the Mines and Mining in believing "that the present Roosevelt administration had to resort to ex­ measure obviates the objections which were traordinary measures to secure a favorab le com­ urged to the act before the Supreme Court." mittee report. The bi ll passed both houses by The new bill's solution to the del.egation prob­ unusually slim margins; and the sentiments of lem was arrestingly simple. Rather than del­ many were summed up by Senator Millard egating authority to prohibit interstate shipment Tydings' ominous forecast of the Act's future : of hot oil to the President, Congress itself pro­ "Like an autumn flower it will be blown away hibited such shipment by statute. 6D "While the by the first winter blast of the Court."70 Supreme Court did not in so many words hold The Court did hold the labor provisions that the Congress had authority to prohibit" unconstitutional in Carter v. Carter Coal CO. 71 such shipments, Connally maintained, "there in 1936. The majority opinion did not, however, is every suggestion in the opinion that in the rule on the validity of the price regulation pro­ original case if Congress itself had prohibited visions. Instead, the majority found that those the interstate shipment of this oil it would have sections were inseparable from the offending been better. ... "61 The bill passed both houses labor provisions. Accordingly, the entire stat­ of Congress without a record vote within six ute had to fall. 72 Hughes wrote separately, weeks of the Court's decision.62 agreeing that the labor provisions were invalid, Observers were confident that the Connally but contending that the price provisions were bill would pass muster before the Court. "[I]t valid, and were severable from the labor provi­ would seem," wrote one, "that Congress has sions. 73 Benjamin N. Cardozo, joined by effectively met the objections expressed by the Brandeis and Stone, agreed in dissent that the Court to the former Act."63 "[C]orrective leg­ price regulation provisions were valid and sev­ islation," wrote another, "has already been ac­ erable. 74 Moreover, Cardozo noted sugges­ complished by the Connall y Bill. . . ."64 "[T]he tively, "Stabilizing prices would go a long way immediate damage caused by the decision in toward stabilizing labor relations by giving the the [Hot Oil] case," remarked a third, "is re­ producers capacity to pay a living wage."75 If paired."65 These assessments were vindicated Congress could enact a law regulating the mini­ in due course. Attacks on the constitutionality mum price at which coal moved in interstate CHARLES EVANS HUGHES 87

Just as overproduction had created turmoil in the petroleum industry, cutthroat competition in the bituminous coal industry exerted disastrous downward pressures on prices, wages, and working conditions. In an attempt to impose order on this chaotic situation, Congress enacted the Guffey Coal Act of 1935. Above, unemployed miners ,in West Frankfort, Illinois, have opened primitive workings on the coal seam of an abandoned mine, known as a gopher hole.

commerce, the dissent intimated, many of the of the bill therefore believed that the only rea­ labor difficulties caused by cutthroat price com­ son that the Carter majority opinion had not petition might be ameliorated as a result. 76 And squarely addressed the Guffey Act's price pro­ the opinions of Hughes and Cardozo, coupled visions was that Justice Owen 1. Roberts did with the fact that the majority opinion had re­ not consider them unconstitutional. After all, frained from declaring the price provisions them­ they pointed out, it was Roberts who had writ­ selves unconstitutional, suggested that such ten the landmark opinion upholding broad gov­ an act might well pass constitutional muster. 77 ernmental power to regulate prices in the 1934 8l In the 'late winter and early spring of 1937, case of Nebbia \I. New York. Ifbetween 1934 Congress framed just such a bill. The Bitumi­ and t 936 Roberts had "had any change in mind nous Coal Conservation Act of 1937 essentially relative to the power of Congress to regulate reenacted the Guffey Coal Act without the ob­ prices," contended Representative Fred Vinson, jectionable labor provisions. 7~ Both in the com­ "it would have been an easy matter to have mittee reports and on the floor, sponsors re­ invalidated those points" of the Guffey Act. 82 peatedly quoted from the Hughes and Cardozo Members of Congress thus interpreted the opin­ opinions, emphasizing the limited scope of the ions in Carter Coal to mean that a majority of majority opinion as they did SO. 79 Everyone the Court would approve a separate price regu­ knew that each ofthe Four Horsemen held very lation measure.83 Solicitor General Stanley F. restrictive views of governmental power to regu­ Reed testified to his view that the bill was now late prices, and it was almost certain that they constitutional, and its backers in Congress were would have been prepared to invalidate regula­ optimistic about its prospects before the tion of coal prices on the merits.80 Supporters Court.84 Even Senators and Representatives 88 JOURNAL 1998, VOL. I

who had opposed the Guffey Act on ""VII"M.... C years before. "The majority of tional grounds announced their support t case did not pass on the price­ revised bill.85 As Senator Guffey put it ns ofthe earlier Act. The Chief bill is drawn so as light of limitations pretation has impos gress."86 "As a la body, I say to you the language of this the Supreme Court," "Our efforts have n

Owen J. Roberts' majority opinion invalidating the Railroad Retirement Act of 1934 identified no fewer than nine ways in which its detailed provisions violated the Due Process Clause of the Fifth

annuities would be paid to retirees. CHARLES EVANS HUGHES 89 to ascertain whether or not the enactment falls Congress on how to shape future enactments within them, uninfluenced by predilection for so as to comport with the requirements of the or against the policy disclosed in the legisla­ Constitution. It was instead erecting an insu­ tion."9o Roberts then proceeded to bludgeon perable obstacle to any such ameliorative leg­ the Act to death, identifying no fewer than islation. "If the opinion were limited to the par­ nine ways in which its detailed provisions vio­ ticular provisions of the Act, which the major­ lated the Due Process Clause of the Fifth ity find to be objectionable and not severable," Amendment. 91 Having pummeled the Act to a he complained in dissent, "the Congress would bloody pulp, Roberts then administered the be free to overcome the objections by a new coup de grace: even were all of the due pro­ statute .... " 93 "What was . . . found to be incon­ cess defects of the statute rectified, it would sistent with the requirements of due process still be unconstitutional, for it was "not in pur­ could be excised and other provisions substi­ pose or effect a regulation of interstate com­ tuted. But after discussing these matters, the merce within the meaning of the Constitu­ majority finally raise a barrier against all leg­ tion."92 islative action of this nature by declaring that Hughes was clearly distressed. The major­ the subject matter itself lies beyond the reach ity, in his view, was not performing its appropri­ of congressional authority to regulate interstate ate consultative function. It was not advising commerce. In that view, no matter how suitably 90 JOURNAL 1998, VOL. I limited a pension act for railroad employees two bills rather than one because pension leg­ might be ...still under this decision Congress islation properly fell under the jurisdiction of would not be at liberty to enact such a mea­ one committee while taxing bills fell under the sure."94 "The gravest aspect of the decision," jurisdiction of another. 103 Hughes remarked gravely, "is that it does not When the District Court of the United States rest simply upon a condemnation of particular for the District of Columbia granted the major features of the Railroad Retirement Act, but railroads an injunction restraining collection of denies to Congress the power to pass any com­ the tax in June of 1936,104 it appeared that the pulsory pension act for railroad employees."95 Fuchs strategy had foundered. Citing exten­ This lament was echoed by Cassandras in sively to the congressional debates,105 the dis­ the law reviews,96 but it proved to be unwar­ trict court concluded that the Carrier Taxing Act ranted. In the April issue of the St. Louis Law and the Railroad Retirement Act were two parts Review, Ralph Fuchs played the contrarian. of a single scheme that, taken as a whole, con­ "The decision of the Court does not in reality tained many of the defects from which the 1934 exclude the power of Congress," he maintained. act had suffered. 106 "No reason appears why Congress could not The Railroad Retirement Board immedi­ levy a payroll tax upon the carriers and provide ately took an appeaL 107 But in December of also for the payment of pensions to retired em­ 1936, before the Court of Appeals could hear ployees out o/the Treasury."97 In other words, argument in the case, President Roosevelt sug­ what Congress could not accomplish through and labor get its Commerce Power it might nevertheless be the terms of a railroad able to achieve through its powers to tax and of all of the spend. "To guard against an adverse "' .... 'v'.,"VH up@n a pension law enacted under the power," Fuchs cautioned, "it might separate the taxing measure and the rizing the payment of the pensions. theory was that the tax, considered "Ai'."r"~AI'j from the pension payments, would as a legitimate revenue measure. propriations to pay the pensions, considered, would similarly survive constitLI­ prin­ tional chalJenge--though for different reasons ciple of collective bargaining.",o9 Such collec­ that I will explain momentarily.99 tive bargaining in the railroad industry had been That surruner Congress followed the course institutionalized by the Railway Labor Act of mapped out by Fuchs, though it did so without 1926,110 which the Court had unanimously sus­ much subtlety. loa H.R. 8651 became the Rail­ tained in a 1930 opinion written by Hughes road Retirement Actof1935;lol H.R. 8652 be­ himself. III Sponsors professed their faith that came the Carrier Taxing Act ofl935.102 The Tax­ both the 1937 bills and the 1935 Acts were con­ ing Act was calibrated to generate the amount stitutionaL 112 Representative Clarence Lea of revenue necessary to fund the pension pay- added, however, that "Friends of this legisla­ fear For, ""IJHU,J',,''', as part accusing their colleagues of the deal "It is agreed between the represen­ get the plan's sponsors tatives of the railroads and the brotherhoods an attempt to circumvent that they will not contest the constitutionality Proponents of the bill, of this legislation ... and that they will use their assuring their that no such leger­ influence against having anyone else bring such demain was intended, struggled to keep a action." 114 The parties were true to their straight face while explaining that there were words, Il5 and the retirement system they cre- CHARLES EVANS HUGHES 91 ated remains with us in modified form to this crease the burden offuture federal taxation and day.116 thereby take her property without due process The strategy of the sponsors of the Carrier of law. Justice Sutherland's opinion, joined by Taxing Act and the Railroad Retirement Act of Justices Holmes, Brandeis, Van Devanter, But­ 1935 was informed by the opinion ofthe Court ler, and McReynolds, held that Frothingham's in Frothingham v. Mellon.1Il The case was status as a taxpayer was insufficient to give her actually decided in 1923, when William Howard standing to challenge the appropriation. Her Taft was Chief Justice. But a majority of the interest in the moneys of the federal treasury, Justices who joined that unanimous opinion he explained, was shared with millions of oth­ were also members of the Hughes Court. Mellon ers, and was too "minute and indetermin­ involved a constitutional challenge to the able."119 Sheppard-Towner Maternity Act of 1921 , 11 8 This "taxpayer standing doctrine" had enor­ which established a federal grant-in-aid pro­ mous ramifications for federal spending policy gram for the reduction of maternal and infant in the 1930s. As Edward Corwin observed at mortality. Under the statute, Congress appro­ the time, "so long as Congress has the prudence priated funds to be disbursed to states that es­ to lay and collect taxes without specifying the tablished qualifying programs for the promo­ purposes to which the proceeds from any par­ tion of maternal and infant health. Frothingham ticular tax are to be devoted, it may continue to complained that the appropriations would in- appropriate the national funds without judicial

The Sheppard-Towner Maternity Act of 1921, which established a federal grant-in-aid program for the reduction of maternal and infant mortality, empowered Congress to appropriate funds to be dishursed to states that established qualifying programs (such as the clinic pictured above), for the promotion of maternal and infant health. A taxpayer complained that the appropriations would increase the burden of future federal taxation and thereby take her property without due process of law. The Court held that status as a taxpayer was insufficient to give her standing to challenge the appropriation. This "taxpayer standing doctrine" had enormous ramifications for federal spending policy in the 1930s. 92 JOURNAL 1998, VOL. I let or hindrance."12o Appropriations from the enues.132 He did not want it to appear that the general revenue, as distinguished from expen­ nation'5 farmers were feeding at the public ditures of designated funds collected from a trough. Instead, he insisted that the program particular tax, simply could not be challenged be and appear to be self-financing. 133 The nec­ in the courtS.121 Such an appropriation might essary funds were therefore to be derived from exceed congressional authority to spend for a special excise tax on food processing. The tax the general welfare, but the federal courts would was designed to generate the amount of rev­ nevertheless refuse to restrain the expenditure. enue required to meet the benefit payments "Thus," wrote Benjamin Wright, "the spend­ contracted for, and the act appropriated the pro­ ing of billions of dollars in civilian relief, and in ceeds of the tax for that purpose.1 34 A food the building of public works was beyond the processor challenging the validity ofthe excise range ofconstitutionallitigation."122 As Wright therefore had standing to question the propri­ put it, "the principal way in which the Court ety of the expenditure to which the proceeds of sustained ... New Deal measures was by refus­ his tax payments were specifically devoted. 135 ing to pass upon the validity of the spending And in United States v. Butler136 the Court power."123 down the tax as a step in a scheme to And Wright was right. Throughout the states' authority to regulate agricul- Hughes' tenure, the Supreme Court and the 137 lower federal courts repeatedly invoked the while the Butler opinion invalidated the }vfellon doctrine in rejecting constitutional at­ processing tax, the government continued to tacks

not tration Act,128 and the Emcrgency Relief Ap­ pieting crops were the very surplus commodi­ propriation Act of 1936. 129 Indeed, the most ties whose production the AAA had sought to significant thing about the Hughes Court's control, while the soil-conserving crops were much-discussed spending power jurisprudence not ()verproduced. Five hundred million dol­ is how little it actually mattered in light of the appropriated to fund the payments, taxpayer standing doctrine. but no companion taxing measure was enacted One major New Deal spending initiative that to provide the necessary revenue. Opponents the taxpayer standing doctrine did not shelter of the measure complained that it was clearly from judicial review was the Agricultural Ad­ unconstitutional in light of the Butler decision. justment Act of 1933.130 In an effort to boost But because there was no tax identified with crop prices reSUlting from chronic ag­ the expenditure, no one had standing to chal­ ricultural surpluses, the Act authorized the Sec­ lenge the constitutionality of the payments. 14t1 retary of Agriculture to enter into contracts with Senator Daniel Hastings challenged defenders individual fanners. In the contract, the farmer of the bill's constitutionality "to add to it a tax would agree to reduce his production of cer­ provision to supply the necessary money and tain specified agricultural commodities in ex­ thus give to the American people an early op­ change for a benefit payment. 131 For political portunity to test its validity. Do not do the cow­ reasons, however, President Roosevelt opposed ardly thing and separate the tax provision from payment of the benefits from general rev- this bill, thus making it impossible to prevent CHARLES EVANS HUGHES 93 the illegal spending of at least a halfbillion dol­ Learned students of the Court's federalism lars."'41 But proponents of the bill, chastened jurisprudence thought they detected a familiar by the fate of the AAA, ignored this school­ signal. In 1921 Congress had sought to use its yard taunt, and the law was enacted and imple­ fiscal powers to regulate sales of grain futures mented in its unchallengeable form. 142 on boards of trade. The Future Trading Act'47 As Robert Stem observed, however, the soil imposed a prohibitive tax on all such sales, and conservation strategy was "subject to the limi­ then exempted from the tax all sales made on tations of any voluntary system, even one in boards of trade complying with federal regula­ which cooperation was made profitable. There tions. The Court had declared the Act uncon­ was no assurance that enough producers stitutional in Hill v. Walla ce'48 in 1922. Chief would cooperate to permit a limitation of pro­ Justice Taft's opinion for a unanimous Court duction sufficient to raise prices."'43 Accord­ held that the Act imposed a regulatory penalty ingly, in 1938 Congress turned to a regulatory rather than a true tax, and was accordingly not solution, enacting a second Agricultural Ad­ a valid exercise of the taxing power. 149 In dicta, justment Act. The 1938 Act did not regulate however, Taft had offered Congress an alterna­ the production of staple crops- instead, it au­ tive means of achieving its goal. Noting that thorized the Secretary of Agriculture to pre­ Congress "did not have the exercise of its power scribe and a.1locate marketing quotas for those under the commerce clause in mind and so did crops.144 Drawing on a long I ine of precedents not introduce into the act the limitations which holding that sales for subsequent shipments in certainly would accompany and mark an exer­ interstate commerce were subject to federal regu­ cise" of that power, Taft suggested that sales lation, Congress sought to control prices by of grain futures might be regulated under the controlling the supply of agricultural produce commerce power if "they are regarded by Con­ moving in interstate commerce. 145 But where gress, from the evidence before it, as directly could federal legislators have gotten the idea interfering with interstate commerce so as to be that Congress might achieve through its com­ an obstruction or a burden thereon."15o Taft merce power what it could not attain using its even hinted that the revised statute be based fiscal powers? on the current of commerce doctrine'51 the Court These are the opening lines of Roberts , dis­ had employed in upholding the Packers and cussion ofthe issue offederal power in Butler. Stockyards Act'52 earlier in the Term. 153 Con­ "Article I, section 8 vests sundry powers in the gress took the hint and enacted the Grain Fu­ Congress," he wrote. "But two of its clauses tures Act,'54 which the Court upheld as a legiti­ have any bearing upon the validity of the stat­ mate exercise of the commerce power the fol­ ute under review." The first was the Commerce lowing year in Chicago Board of Trade v. Clause. But, as Roberts observed, "the act un­ Olsen. 155 der review does not purport to regulate trans­ Senator James Pope ofldaho, the principal actions in interstate or foreign commerce. Its sponsor of the Agricultural Adjustment Act of stated purpose is the control ofagrieultural pro­ 1938, drew attention to this passage from Rob­ duction, a purely local activity... . Indeed, the erts' Butler opinion in his defense of the 1938 Government does not attempt to uphold the Act's constitutionality. "The legal theory on validity of the act on the basis of the commerce which the pending bill is based is entirely dis­ clause, which, for the purpose of the present tinct from that which provided the basis for the case, may be put aside as irrelevant." '46 Agricultural Adjustment Act," Pope ex­ This was a curious passage. The act did p\ained.'56 Asserting the need to make the Act's not purport to be an exercise of the power to constitutional foundation in the Commerce coin money or to establish post offices either; Clause explicit in the preamble, Pope observed nor did the government defend the act as exer­ that in Butler "the Court said by reason of the cises of those powers. Why, if he was to so fact that there was no statement or claim in that quickly lay it aside as inapposite "for the pur­ bill that we were proposing to regulate inter­ pose of the present case," did Roberts even state commerce, it was a purely local transac­ bother to mention the commerce power? tion. "157 "As stated by Mr. Justice Roberts," 94 JOURNAL 1998, VOL. I

Justice Louis D. Brandeis thought that Congress could use its taxing power to encourage states to enact unemployment compensation laws by drawing on the authority of Florida v. Mellon. In that 1927 case, the Taft Court had unanimously upheld a federal inheritance tax that granted a credit fOf state inheritance taxes paid. States that had enacted inheritance taxes feared losing their wealthy residents to states like Florida that had no such taxes, and the federal provision had been designed to level the playing field.

Pope continued, "the commerce clause of the that "the decision was followed by a good deal Constitution was put aside as irrelevant in the of uninformed comment to the effect that Mr. Butler... decision. Interstate and foreign com­ Justice Roberts had reversed his position and merce, however, is certainly not irrelevant to that the Court had reversed itself on the sub­ the plight of agriculture at the present time, and ject of control of agricultural production by the through the proper regulation by Congress of Federal Government." "This," the astute Jack­ . . .interstate and foreign commerce pursuant to son insisted, "was certainly untrue."162 the provisions of this bill the economic situa­ I would be remiss in did not relate one final tion of the farmer can be set aside."158 instance of constitutional consultation. I refer Solicitor General Robert H. Jackson, defend­ to what is now the familiar story of Justice ing the Act before the Court in Mulford v. Brandeis' role in framing the unemployment Smith,159 drew the obvious analogy to the fate compensation provisions of the Social Secu­ of grain futures regulation under Taft. "It is clear rity Act. In the summer of 1933 Brandeis was from Hill v. Wallace and Chicago Board of visited at his vacation cottage by his daughter, Trade v. Olsen," he wrote in his brief, "that Con­ Elizabeth Brandeis Raushenbush, and her hus­ gress may utilize the commerce power to regu­ band, Paul. Both were economists at the Uni­ late subjects which it may not reach under the versity of Wisconsin, and deeply interested in taxing power."160 True to form, Roberts used the subject of unemployment insurance. Paul his opinion in Mulford to replicate Taft's per­ expressed to the Justice his frustration that the formance in Chicago Board of Trade v. Olsen: states had resisted enacting statutes on the he upheld the Act as a valid regulation of inter­ subject because they were fearful that local state commerce. 161 Two years later Jackson businesses would be placed at a competitive wrote in The Struggle for Judicial Supremacy disadvantage vis-a-vis businesses of states not CHARLES EVANS HUGHES 95 having such laws. Brandeis replied by asking conference in which Brandeis made the case whether Paul had considered the case of for his scheme of federal-state cooperation. 168 Florida v. Mellon. !03 In that case the Taft Court The bill that ultimately emerged gave had unanimously upheld a federal inheritance Brandeis most of what he had wanted. His early tax that granted a credit for state inheritance initiative had framed the debate, and his posi­ taxes paid. States that had enacted inheritance tion on the Court gave special weight to his taxes feared losing their wealthy residents to counsel. 169 This counsel was vindicated in the states like Florida that had no such taxes, and spring of 1937, when the Court sustained the the federal provision had been designed to level Act constitutional challenge. l7o Figur­ the playing field. Brandeis was suggesting that ing prominently in Justice Cardozo's majority Congress could similarly use its taxing power opinion was the case of Florida v. Me/lon.17I to encourage states to enact unemployment While Justices McReynolds and Butler compensation laws. Congress could simply maintained in dissent that any such program impose a uniform national payroll tax on all was beyond congressional power to enact, 172 employers, the proceeds to be paid into a fed­ the author of Florida v. Mellon wrote sepa­ eral unemployment insurance fund. Employers rately.173 Justice Sutherland had decided to re­ would be allowed a credit against the federal tire from the Bench in March of 1937, and was tax for any amount paid into a comparable in­ waiting only for the Court-packing controversy surance plan established by their own states. to subside before taking his leave. 174 His col- States could then enact such insurance plans Justice Van Devanter had announced free of the concerns that had previously re­ his retirement May 18, six days before the So­ strained them. cial Security Act opinions were delivered. 17s That September the Justice wrote Paul and Under these circumstances, one might have Elizabeth a letter detailing his proposal for a expected these Justices to quietly join the dis­ federal unemployment compensation statute. sent of their fellow Horsemen. Instead they fash­ Throughout the fall of 1933 Brandeis person­ ioned a dissent that provided precisely the sort ally lobbied a number of high administration of consultation that Hughes had called for in officials to support his plan. l64 At the same his own dissent in the railway pension case. time he had his friend Lincoln Filene help Paul Sutherland began by announcing that he agreed and Elizabeth organize a meeting of the influen­ with most of what was said in the majority opin­ tial to discuss his proposal. Among those in ion. !76 In fact, the only element of the scheme attendance was Secretary of Labor Frances to which Sutherland objected was a provision Perkins. lOS Perkins commissioned Paul that required the states to pay the proceeds Raushenbush and Thomas Eliot to draft a bill from their own payroll taxes into the federal based on Brandeis' proposaL When it had been treasury, and allowed withdrawals only by state introduced in the House and the Senate, agencies approved by the federal board. Such Brandeis referred to the bill as "my federal ex­ a requirement, in Sutherland's view, did not cise tax .. . to offset irregularity of employ­ "comport with the dignity of a quasi-sovereign ment."166 state;"177 but the objectionable provision might As the bill ran into resistance in Congress also be easily revised by Congress, Sutherland and the White House, Elizabeth served as the explained. Indeed, he maintained that "every­ Justice's eyes, ears, and chief lieutenant, lob­ thing which the act seeks to accomplish for the bying the administration and recruiting opin­ relief of unemployment might have been ac­ ion leaders to support the Brandeis proposal. !07 complished . .. without obliging the state to The Justice conscripted Felix Frankfurter to aid surrender, or to share with another government, her in the crusade for the "one true faith," and any of its powers."178 As Sutherland pointed met personally with Edwin Witte, the Executive out, the Social Security Act's old-age pension Director of Secretary Perkins' Committee on provisions had accomplished their goal in a Economic Security, in an effort to win him over. manner consistent with the Constitution, and Brandeis even extended his evangelism to the he and Van Devanter joined the opinion up­ Oval Office-he and Roosevelt had a personal holding them that very day. 179 Make one rela- 96 JOURNAL 1998, VOL. I tively minor revision in the unemployment constitutional difficulties thus presented by the compensation provisions of the statute, their Alabama act. The pioneer among these states dissent made clear, and there would have been is Wisconsin."ls4 Of course, neither seven votes to uphold them as well. Wisconsin's nor any other state's unemploy­ That same day Justice Stone wrote the ma­ ment act was before the Court. Sutherland nev­ jority opinion upholding Alabama's state un­ ertheless went on to explain the provisions of employment compensation act. ISO McReynolds Wisconsin's statute,IS5 ane! to offer an advisory simply dissented without opinion. 181 But opinion on its constitutionality: "I entertain no Sutherland, this time joined by both Van doubt that the Wisconsin plan is so fair, rea­ Devanter and Butler, again dissented separately. sonable and just," he wrote, "as to make plain "The objective sought by the Alabama statute its constitutional validity."ls6 Even in dissent here in question, namely, the relief of unem­ at the end of their careers, Sutherland and Van ployment, I do not doubt is one within the con­ Devanter were offering pointers on how to at­ stitutional power of the state," Sutherland be­ tain permissible ends through means consis­ gan. "But it is an objective which must be at­ tent with the Constitution. Incidentally, the tained by legislation which does not violate Wisconsin statute the dissenters praised had the due process or the equal protection clause also been drafted by Paul Raushenbush. And of the Fourteenth Amendment. This statute, in that draft was based on a memorandum written my opinion, does both, although it would have in 1911 by an extraordinari Iy able constitutional been a comparatively simple matter for the leg­ lawyer: Louis D. Brandeis. ls7 islature to avoid both. "182 After detailing the In March of 1937, at the height ofthe Court­ ways in which the act denied due process and packing struggle, Chief Justice Hughes was equal protection,183 Sutherland observed that visited at his home by Senator Burton K. "other states have not found it impossible to Wheeler. During that conversation Hughes adjust their unemployment laws to whether the constitutional his-

economists at University of Wisconsin and both deeply interested in the subject of unemploy­ ment insuranc~ to help him shape the unemployment provisions of the Social Security Act. As the bill encountered opposition, Elizabeth served as the Justice's eyes, ears, and chief lieutenant, lobbying the administration and recruiting opinion leaders to support tbe bill. Here she is pictured with her father on his eightieth birthday, November 13, 1936. CHARLES EVANS HUGHES 97 tol)' of the New Deal would have been differ­ and what so many in the Congress of the 1930s ent had Roosevelt appointed a different Attor­ clearly understood, we will see that the Supreme ney General. Remarking that "the laws have Court under the chief justiceship of Charles been poorly drafted," Hughes told Wheeler, Evans Hughes faced the economic and politi­ "We've had to be not only the Court but we've cal crises of the 1930s neither on four feet nor had to do the work that should have been done on three, but instead firmly on two. by the Attorney General."1 88 Hughes might have *Thanks to Jason Tilly and Greg Kratofil for been referring to any of a number of failures excellent research assistance. on the part of the Justice Department, but one was almost certainly on his mind. That vel)' Endnotes month Congress was framing the Bituminous Coal Act that Hughes and his Court would ul­ I Joseph Alsop & Turner Catledge, The 168 Days 16, timately uphold. In 1935 a subcommittee ofthe 155 (1938); Leonard Baker, Back to Back: The Duel Between F.D.R. and the Supreme Court J 10 House Ways and Means Committee had asked (1967); Merlo J.Pusey, Charles Evans Hughes 733 Attorney General Homer Cummings to appear (195 I); Burton K. Wheeler, Yankee From the West and offer his views concerning the Guffey Coal pO (1962). Act's constitutionality.'89 Lawyers in his Jus­ See William R. Casto, The Supreme Court in the prly Republic 77-81 (1995). tice Department had been convinced that the 4 Wheeler, supra note I, at 330. labor provisions were unconstitutional,'90 and Alsop & Catledge, supra note 1, at 16. had reportedly told him so before his appear­ 5 /d. For the suggestion of one New Dealer that the ance.191 But Cummings had refused to offer Court ought to be required to give Congress advisory opinions, see remarks of Rep. Monaghan, 79 COl/g. Congress an opinion on the bill's constitution­ Rec. 7150, 741h Congo I" Sess. (May 8,1935). ality. Instead he had advised the subcommittee 6 F. Carlisle Roberts, "The New Frazier-Lemke Act­ "to push [the bill] through and leave the ques­ Its Provisions, Its Constitutionality," 22 A. B.A. 1. 15 tion to the courtS." I92 For Hughes, this episode (1936). See, e.g., John Hanna, "Agriculture and the Bankruptcy Act," 19 Mil/I/. L. Rev. I, 28-32 (1934); was no doubt emblematic of the early New John F. Reinhardt, "The New Frazier-Lemke Amend­ Deal. In his eyes, the Attorney General's office ment," 4 Kal/. City. L. Rev. 19 (1935); R. O. Williams, had not given the administration and Congress "The Frazier-Lemke Law," 13 Neb. L. B. 481 , 490-91 the constitutional counsel they needed, but had (1935); Note, "Bankruptcy: Federal Farm Mortgage Relief under the Bankruptcy Act," 21 Corn. L. Rev. left that important task to the Court instead. In 171, 171-72 (1935). For predictions that the first Act his State of the Union address in Janual)' of would be held unconstitutional, see, e.g., Note, "Relief 1937, Roosevelt had said, "The judicial branch of Distressed Farmers Under the Frazier-Lemke Act?" ...also is asked by the people to do its part in 3 G. W L. Rev. 86, 95-96 (1934); Note, "Bankruptcy­ Validity of Fraz ier-Lemke Act," 29 Ill. L. Rev. 645, making democracy successful."'93 In Hughes' 653 (1935). John Hanna, "The Frazier-Lemke view, the judicial branch had been doing its part Amendments to Section 75 of the Bankruptcy Act," and more. 20 A.B.A. 1. 687,689 (1934) and Reuben G. Hunt, EveI)' first year law student learns that con­ "Land Titles as Affected by Bankruptcy," 20 A.B.A. 1. 719, 722 (1934), suggested the Act's constitutionality stitutional law is not only about the permis­ fas open to serious question. sible ends of government; it is also about the Roberts, supra note 6. means by which such ends may be attained. 8 "Bankruptcy: Federal Farm Mortgage Relief under Yet our conventional renderings of the Hughes the Bankruptcy Act," supra note 6, at 173. 9 "Relief of Distressed Farmers Under the Frazier­ Court obscure this important distinction, por­ Lemke Act?," supra note 6, at 87 . traying the constitutional disputes of the New lO"The Frazier-Lemke Amendments to Section 75 of Deal era as disagreements principally about the Bankruptcy Act," supra note 6, at 689. See also, ends. In suppressing this elemental)' distinc­ Roberts supra note 6, at I 5 ("an outstanding example of ill-conceived legislation"). tion between the legitimate objectives of gov­ " "Relie f of Distressed Farmers Under the Frazier­ ernment and the manner in which those objec­ Lemke Act?," supra note 6, at 87. See also "Bank­ tives may be achieved, we have lost sight of ruptcy: Federal Farm Mortgage Relief under the Bank­ the distinctively consultative role played by ruptcy Act," supra note 6, at 174. 12 "Relief of Distressed Farmers Under the Frazier-Lemke the Court during Hughes' unique tenure. Ifwe Act?,"supra note 6, at 87. will only remember what we have always known, 13 /d. 98 JOURNAL 1998, VOL. I

14 "Bankruptcy: Federal Fann Mortgage Relief Under the ruptcy: Federal Farm Relief Under the Bankruptcy Bankruptcy Act," supra note 6, at 173. Act," supra note 6, at 176, n. 39. The report of the l5 The New York Times, July I, 1934, at 21, quoted in Senate Judiciary Committee began by stating that "This "Bankruptcy: Federal Farm Mortgage Relief Under bill has fo r its object ... the rewriting of subsection(s), the Bankruptcy Act," supra note 6, at 173, u. 22. See which has been held unconstitutional, so as to con­ Note, "The New Frazier-Lemke Act: A Study," 37 form to the decision of the Supreme Court." S. Rep. Co/urn. L. Rev. 1092, 1094 (! 937). No. 985, 74'h Congo I" Sess., at I (J 935 ). "We feel 16 295 U.S. 555 (1935). that all the provisions in the rewritten subsection(s) See Lewis J. Paper, Brandeis 350 (1983); Melvin have been approved in principle in numerous decisions L Urofsky, Louis D. Brandeis and the Progressive by the Supreme Court." fd. at 3. The balance of the 1ladition 162 (Oscar Handlin ed., 1981). report detailed how objectionable provisions had been Those were: either omitted entirely, id. at 4, or mod ified so as to " I . The right to retain the lien until the indebted· resemble provisions that the Supreme Court bad pre­ ness thereby secured is paid. viously approved in other bankruptcy cases. ld. al 5- 2. The right to realize upon the security by a 7. H. Rep. No. 1808,74"' Congo lSI Sess. (1935), which judicial public sale. accompanied H.R. 8728, 74" Congo I" Sess. (1935), 3. The right to determine when such sale shall be the House version of the bi ll, was virtually identical to held, subject only to the discretion of the court. Senate report. 4. The right to protect its [the mortgagee's] in­ Asked by Senator McKellar whether the Judiciary terest in the property by bidding at such sale whenever Committee was satisfied that the bill would pass consti­ held, and thus to assure having the mortgaged prop­ tutional muster, Senator Pat McCarran assured him, "I erty devoted primarily to the satisfaction of the debt, can on ly affirm our faith in its constitutionality ...We either through receipt of the proceeds of a fair com· sought, and the author of the bill sought, to relieve the petitive sale or by taking the property itself. bill of those provisions which had been declared to 5. The right to control meanwhile the property be unconstitutional by the Supreme Court ... if any during the period of default, subject only to the discre· hill can be enacted which will be constitutional it will tion of the court, and to have the rents and profits be a bill along these parti cular lines ....The committee collected by a receiver for the satisfaction of the debt." has studied the question carefully, and has inserted in the 295 U.S. at 594-95. bill a number of amendments seeking to have it conform 19 "Bankruptcy: Federal Farm Mortgage Rel ief under to what we believe to be constitutional requirements.. . I the Bankruptcy Act," supra note 6, al 173. believe we have obviated the features which might verge 20 Richard D. Friedman, Charles Evans Hughes as upon unconstitutionality." 79 Congo Rec. I J 971,74'" Congo Chief Justice, 1930-1941: The Complexities of 1" Sess. (July 29, 1935). See also 79 Cong Rec. 13411, Moderation 23 ! (unpublished D. Ph il. diss., Oxford 74'h Congo I" Sess. (August 16, 1935) ("Mr. Robi nson: University, 1978). The pending bill is intended to correct the fearures of that 21 See "The New Frazier-Lemke Act: A Srudy," supra act which were held to be unconstitutional"); id. ("Mr. 15, at 1095-96. Borah: The pending bill is designed to, and it is believed it S. 3002, 74" Congo I ~ Sess. (1935) was introduced does, avoid the unconstirutional features which were in that June 5, 1935, 79 Congo Rec. 8666, 74'" Congo \" Sess. law"); !d. at 13632 ("Mr. Borah: The purpose of the bill is (\935); S. Rep. No. 985, 74" Congo I" Sess. (1935) to avoid the objectionable features of the Fonner act as they was submitted July I, 1935, 79 Congo Rec. 10463. A were denounced by the Supreme Court." Borah then ex­ comparable bill, H. R. 8728, 74'" Congo 1" Sess. (1935) plained how the new bill did so); id. at 13633 (Sen. Borah was introduccd in the House June 29, 79 Co ngo Rec. and Sen. Frazier explain to Sen. Hastings, to Hastings' sal· 10458, and reported with amendments August 16, 1935, isfaction, why discretion vested in the court to order a sale H. Rep. No. ! 808 74" Congo I" Sess., 79 Congo Rec. of the property earlier than 3 years from the date of bank­ 13494. H.R. 8728 was tabled and the Senate bill, as ru ptcy rescued the Act from a constitutional difficulty that amended, was passed in lieu thereof. 79 Congo Rec. plagued the earlier act; id. at 13640 (Sen. Robinson con­ 14334. The Senate subsequently concurred in the House curs in Borah's and Frazier'S explanation to Hastings); id. amendments. ld. at 13233-34. at 13831 ("Mr. Lloyd: Mr. Speaker, this is a bill that has 13 "Bankruptcy: Federal Farm Mortgage Relief under been rewritten by the Committee on the Judiciary as a sub­ the Bankruptcy Act, supra note 6, at 173-74. stitute for the bi ll that the Supreme Court declared uncon· 14 William A. Reppy, Comment, "Constitutional Law­ stinltional. The committee has given very careful consid· Bankruptcy ~F razier-Lemke Amendment," I 0 So. eration to the bill. We have in no way reduced the security Cal. L Rev. 474,476 (1937). See also Ro berts, supra of the mortgagee. We have left his security intact, but we note 6. "The constitutionality of this Act, because of have made it possible for the bankruptcy court to retain the fate of its predecessor, was the paramount consid­ jurisdiction for a period not to exceed 3 years. It is the eration during its progress through Congress," one com­ feeling of the committee that if the farmers have a breath­ mentator pointed out. "Bankruptcy: Federal Farm ing spell they will be able to work out their own sa lvation. Relief Under the Bankmpley Act," supra note 6, at The bill we passed last year was declared unconstirutional 176. The new Act was passed "after extensive hear· on the ground that it impaired the security of the mort· ings," Roberts supra note 6, at 15, and "[t]he Judiciary gagee"); id. at 14331 ("Mr. Lemke: All tbis bill does is to Committee of the Senate. . including some of the comply with the decision of the Supreme Court, giving most able lawyers in the upper house on constitutional the fanner an opportunity to get a breathing spell after he questions, was unanimously in favor of the bilL" "Bank- goes into bankruptcy"); id. at 14332 ("Mr. Greever: Does CHARLES EVANS HUGHES 99 the gentleman feel that the constitutional feature that was 13632-33 (objections of Sen. Robinson and Sen. Lo­ decided by the Supreme Court is now fully cured? Mr. gan); ;d. at 13641 (objection of Sen. Tydings). Senator Lemke: I agree with the members of the Senate Judiciary Frazier was way ahead of them, and announced his Committee that, with the amendment that Mr. SUllU1ers intention to offer an amendment striking thc objec­ wi ll offer, there will be no constitutional question about tionable provision, which had already been removed the bill. from the House version by the House Judiciary Com­ Mr. Klocb: ... is the gentleman now satisfied in his mittee. Senator Borah concurred, saying "I do not own mind that this bill will pass the constitutional wish to urge it [the provision objected to], if it be test? Mr. Lemke: Yes; I am satisfied that this bill regarded of doubtful validity," id. at 13633, and the now complies with the language of the Supreme objectionable provision was excised by amendment. Court decision . We have complied with the Id. at l3643-44. See also id. (Borah and Ashurst as­ decision.. "); id. at 14333 ("Mr. McCormack: It is sure Logan that the objectionable provision will be the gentleman's opinion that this bilt as now drafted takcn out of the bill); id. at 13641 (Borah informs comes within the constitutional powers of the Con­ Tydings of the agreement to strike the provision). gress? I'vk Sumners: As I explained, that opinion is Senator Robinson also objected to a proposed "provi­ drawn largely from the unanimous opinion of the mem­ sion which I think will cause the raising of another bers of the Committee on the Judiciary, who have constitutional question on this bill" and would "endan­ more carefully examined it, but from the examination ger the validity of tbe proposed act." ld. at 13641. See which I have made, which is rather casual, I did not also id. at 13634-36, 13640-41. Senator Ashurst agreed observe anything, if this amendment is adopted, which to its exclusion, and tbe amendment that would have would make me apprehensive as to its constitutional­ included the objectionable provision was defeated. ld. ity"); See Note, "Bankruptcy The Frazier-Lemke at 13643. In the House Representative SUllU1ers sought ~ct," 22 Va. L. Rev. 218,219 (1935). further to secure the Act's constitutional foundation, 79 Congo Rec. 11971, 74'" Congo I" Sess. (July 29, offering an amendment, promptly agreed to, securing 1935). Ashurst added, "I emphasize the fact that the to the mortgagee the right to have foreclosure on the Judiciary Committee examined many authorities, and property if the debt was not paid in fu ll. fd. at 14332- the committee carefully considered this bi II .... I believe the learned members of the Judiciary Commit­ When the bill was introduced in the HOllse, con­ tee have done a good work on this bill. If it be within gressman Lemke announced, "This bill was very care­ the power of Congress to pass a law upon the subject, fully considered by a subcommittee of the Committee I believe this bill will meet the objections of the Su­ on the Judiciary of both the House and the Senate, and prcme Court. .. if Congress can constitutionally pass by the full Committee on the Judiciary of both the such a law at all it would be Similar to this one." !d. House and the Senate, and last Monday it was passed 27 Asked by Senator Copeland whether "this bill, in the after an hour and a half discussiol) on the question of foml in which it is now presented to us, is likely to run its constitutionality, without a dlssenting vote, in the the gauntlet of the courts and to be declared valid United States Senate." !d. at 14332. In a concluding legislation?" Senator Borah responded that "that was defense of the bill's constitutionality Sumners main­ the conclusion which was reached by the Judiciary Com­ tained that "although there was doubt with reference mittee, including myself. The Judiciary Committee to the first bill[,J [ understand from my colleagues on devoted their effort to working out the measure so as the committee there is not now any doubt as to the to bring it within the Constitution and obviate the constitutionality of this bill .... ," it!. at 14333. The objections made by the Court to the previous act. I do bill was then passed by a voice vote. The Cornell Law not think there was any disagreement in the Judiciary Review observed that "the lack of opposition in both Committee that we had finally framed such a measure. chambers seems to indicate that the legislators were It is my opinion that it will run the ga[u]ntlet of the satisfied with the present Act," and that "the con­ courts ... in my opinion, this bill is constitutionaL" sensus of Congressional opinion seems to be that the Copeland then asked Borah whether he had taken "an rights of the creditor have been fully protected. . . " opposite view regarding the original Frazier-Lemke "Bankruptcy: Federal Farm Mortgage Relief Under Act'!" Borah responded that he had "opposed that the Bankruptcy Act," supra note 6, at 174, 176 . measure here on the floor, as the RECORD will .10 Comment, "Constitutional Law-Fifth Amend­ show ... For the reason that I thought ii was unconsti­ ment-Invalidity of Frazier-Lemke Amendment to tutional." Copeland replied, "At least, though, it ap­ the Bankruptcy Act," 35 Co/urn. L. Rev. 1136, 1138 pealed to the Senator's heart and he would have been (1935). Reaching the same conclusion were Note, glad to support it if he had thought it to be constitu­ "Constitutionality of the New Frazier-Lemke Amend­ tional'!" To this Borah responded: "1 would have been ment to the Bankruptcy Act," 4 G.W L. Rev. 105,114 anxious to see the measure passed if I had thought it (1935); "Bankruptcy: Federal Farm Mortgage Rclief would have been able to escape the constitutional ob­ Under the Bankruptcy Act," supra note 6, at 171, " ld. at 13642. 176; Rufus K. Breihan, "The New Frazier-Lemke Senators objected to a provision in the Sen­ Amendment," 41 Com. L. 1. 152 (1 936); Note, "Con­ ate bill that would have limited the right of the mort­ stitutional Law-Due Process-Validity of Amended gagee to bid on the property at auction on the ground Frazier-Lemke Amendment to Bankruptcy Act," 84 that it "would invalidate this measure if it were re­ U. Pa. L. Rev. 545, 546-47 (1936). tained." Id. at 13634 (objection of Sen. Robinson); see Not all commentators were so optimistic. See, also id. at 13413 (objection of Sen. Robinson); id. at e.g., Roherts, supra note 6; Note, "Constitutional 100 JOURNAL 1998, VOL. I

Law-Bankruptcy-Validity of Amended Frazier-Lemke tained: "There is nothing novel in the new Act. It Farm Mortgage Moratorium Law," 13 NYU. I. Q. 465 simply applies well established principles of bankruptcy (J 936); John Hanna, "New Frazier-Lemke Act," 1 Mo. I. law to agriculture. This may appear novel, but there is Rev. 1 (1936); Reinhardt, supra note 6, at 21, 29. no provision of the Act which the bankruptcy courts The majority of the lower federal courts hearing chal­ have not already passed upon." 300 U.S. at 443. lenges to the revised act held it unconstitutional. See Com­ Compare the Brief in Response to Petition for ment, "Constitutional Law-Bankruptcy-Frazier-Lemke Writ of Certiorari, at II. "Respondent respectfully Amendment," 10 So. Cal. I. Rev. 474, 476 (1937). For submits that a study of the present act, and of the comments criticizing these decisions as resting on a mis­ opinion of this Honorable Court in the Radford case, understanding of the Radford opinion, see Note, "Consti­ and of the first Frazier-Lemke Act, that was by that tutional Law·--Due Process Validity of Amended case held unconstitutional, will disclose a studied effort Frazier-Lemke Amendment to Bankruptcy Act," 84 U. Pa. by the draftsmen of the present act to give an appear­ I. Rev. 545, 546 (1936); Note, "Bankruptcy-Frazicr­ ance of compliance with the Radford decision, while at Lemke Act-Due Process-Full Faith and Credit," 4 G. W the same time it takes away from the creditor the I. Rev. 525, 526 (1936); Note, "Bankruptcy---Constitu­ same substantive right in specific property that was tionality of the New Frazier-Lemke Act," 30 Ill. I. Rev. illegally to be accomplished by the first Frazier-Lemke 794,795 (1936); "The New Frazier-Lemke Act: A Study," Act." supra note 15, at 1096; Note, "Constitutional Law· Due 35 300 U.S. at 456-57, Process and the Frazier-Lemke Acts," 35 Mich. I. Rev. )6 Id. at 464 n.9. 1130, 1134-35 (1937). See also Wright v. Vinton Branch J7 !d. at 458 n.2. Bank, 300 U.S. 440, 457 (1937). )8 Id. at 470. JJ 300 U.S. 440 (1937). 39 West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937). 32 Brief on Behalf of Robert Page Wright, p. 2. "When 40 NLRB v. Friedman-Harty Marks Clothing Co., 30 I the Supreme Court held the original Frazier-Lemke U.S. 58 (1937); NLRE v Fruehauf Trailer Co., 301 Act unconstitutional in [Radfordj," the brief explained, U.S. 49 (l937); NLRE v. Jones & Laughlin Steel Corp., i,OI U.S. I (1937). the present act was introduced in both the Steward Mach. Co. v. Davis, 301 U.S. 548 (1937); Senate and the House. It was referred to the Carmichael v. Southern Coal & Coke Co., 301 U.S. Judiciary Committees of the Senate and the 495 (J 937). House and both of these Committees referred 42 Comment, "Constitutional Law-Frazier-Lemke it to Subcommittees for study and consider­ Act-Judicial Discretion as Affecting Validity," 37 ation with the purpose of complying with the Colum. L. Rev. 1005, 1006 (1937). See also "Consti­ court's decision. tutional Law-Due Process and the Frazier-Lemke The author of the bi II was called in by Acts," supra note 30, at 1135-36 ("perhaps the most both of the Subcommittees. The Act was then significant conclusions to be drawn about the recent carefully considered sentence by sentence, decisions of the Supreme Court in the Radford and section by section, with the decision of the Wright cases and the history of the two acts are ...that Supreme Court so as to comply with that de­ hastily drafted, more or less ill-considered legislation cision. Many changes were made by the Sub­ (as to means) will not survive the test of due process, committees. while carefully worked out and planned statutes on the After the Subcommittees had finished same subject and accomplishing substantially the same their work the bill was reintroduced with the ?,bjects will"). changes and amendments made by the Sub­ 4; 48 Stat. 195, 200 (J 933). committees and then was brought up before Panama Refining Co. v. Ryan, 293 U.S. 388, 405- the Committees of the Whole of both the 12 (1935). 45 293 U.S. at 410. The response to this embarrass­ ment was the establishment of the Federal Register, in which such orders would thenceforth be officially pub­ lished. Schlesinger, The Age of Roosevelt: The Pol i­ ~~cs of Upheaval, 254-55 (1960)., Harold L. Ickes, The Secret DIary of Harold L. ~~kes, 247 (1953). 293 U.S. at 430. debated with a view of having it comply with 48 !d. at 421-30. "The Constitution has never been the decision of the Supreme Court and was regarded as denying to the Congress the necessary re­ finally passed ... without a dissenting vote in sources of flexibility and practicality, which will en­ either House. able it to perform its function in laying down policies and establishing standards, while leaving to selected !d. at 9 (emphasis in original). This theme was again instrumentalities the making of subordinate rules within emphasized at oral argument. 300 U.S. at 443. See prescribed limits and the determination of facts to "Constitutional Law-Due Process and the Frazier­ which the policy as declared by the legislature is to Lemke Acts," supra note 30, at 1136 n.31. apply. Without capacity to give authorizations of that 33 Brief on Behalf of Robert Page Wright, at 3-6. sort we should have the anomaly of a legislative power 34 !d. at 10-11. At argument Wright's counsel main- which in many circumstances calling for its exertion CHARLES EVANS HUGHES 101 would be but a futility. But the constant recognition of prohibition laid down by the Executive Order under the necessity and validity of such provisions, and the section 9(c). The Executive. Order contains no find­ wide range of administrative authority which has been ing, no statement of the grounds of the President's developed by means of them, cannot be allowed to action in enacting the prohibition. Both section 9(c) obscure the limitations of the authority to delegate, if and the Executive Order are in notable contrast witb our constitutional system is to be maintained." ld. at historic practice ...by which declarations of policy are 421. made by the Congress and delegations are within the " "There is no requirement, no definition of circum- framework of that policy and have relation to facts stances and conditions in which the transportation is and conditions to be found and stated by the President to be allowed or prohibited." ld. at 430. in the appropriate exercise of delegated authority. If it '0 ld. at 415. Referring to Section I of the Act, which could be said that from the four corners of the statute set forth the Act's policy in general terms, Hughes any possible inference could be drawn of particular wrote, "This general outline of policy contains noth­ circumstances or conditions which were to govem the ing as to the circumstances or conditions in whicb exercise of the authority conferred, the President could transportation of petroleum or petroleum products not act validly without having regard to those circum­ should be prohibited,-nothing as to the policy of stances and conditions. And findings by him as to the prohibiting, or not prohibiting, the transportation of existence of the required basis of his action would be production exceeding what the States allow. The gen­ necessary to sustain that action, for otherwise the case eral policy declared is 'to remove obstructions to the would still be one of an unfettered discretion as the free flow of interstate and foreign commerce.' As to qualification of authority would be ineffectual. . . . To production, the section lays down no policy of limita­ hold that [the President] is free to select as he chooses tion," /d, at 417-18. "The Congress did not undertake from the many and various objects generally described to say that the transportation of ' hot oil' was injuri­ in the first section, and then to act without making ous, The Congress did not say that transportation of any finding with respect to any object that he does that oil was 'unfair competition.' The Congress did select, and the circumstances properly related to that not declare in what circumstances that transportation object, would be in effect to make the conditions inop­ should be forbidden, or require the President to make erative and to invest him with an uncontrolled leg­ any determination of any facts or circumstances, is lative power." 293 U.S. at 431-32. Indeed, such Among the numerous and diverse objectives broadly findings were mandated by the requirements of the stated, the President was not required to choose. The Fifth Amendment: "if the citizen is to be punished President was not required to ascertain and proclaim for the crime of violating a legislative order of an the conditions prevailing in the industry which made executive officer, or of a board or commission, due the prohibition necessary, The Congress left the mat­ process of law requires that it shall appear that the ter to the President without standard or rule, to be order is within the authority of the officer, board dealt witb as be pleased. The effort by ingenious and or commission, and, if that authority depends on diligent construction to supply a criterion still permits determinations of fact, those determinations must be such a breadth of autborized action as essentially to shown." Id. at 432. commit to the President the functions of a legislature 53 Comment, "Constitutional Law-Delegation of rather than those of an executive or administrative Legislative Powers- National Industrial Recovery officer executing a declared legislative policy. We find Act," 8 So. Cal. L. Rev, 226, 229 (1935). See also nothing in section I which limits or controls the au­ Charles K . Burdick, "Constitutional Aspects of the thority conferred by section 9(c)." ld. at 418-19. Nor New Deal in the United States," 13 Can , B. Rev. 699, could any of the Act's other sections "be deemed to 710 (1935) ("the particular situation. .can be met prescribe any limitation of the grant of authority in easily by a more definite congressional declaration of section 9(c)." /d. at 419-20. policy and purpose to control the President's future "If section 9(c) were held valid, it would be idle to exercise of discretion"); Carl H. Baesler, "A Suggested pretend that anything would be left of limitations upon Classification of the Decisions on Delegation of leg­ the power of the Congress to delegate its law-making islative Power," 15 B. U. L. Rev. 507,529 (1935) ("If function. The reasoning of the many decisions we a standard-a reasonable one-had been provided it is have reviewed would be made vacuous and their dis­ fair to assume that a contrary result would have been tinctions nugatory. Instead of performing its law-mak­ reached"). ing function, the Congress could at will and as to such ,. "Section 9(c) of the National Industrial Act could subjects as it chose transfer that function to the Presi­ have been reenacted by the use of the same language dent or other officer or to an administrative body. The that was in the original act with probably 10 to 20 question is not of the intrinsic importance of the par­ words additional to bring it within the rule laid down by 1 ticular statute before us, but of the constitutional pro­ the Supreme Court." 79 Cong. Ree. 2 135-36, 74 • Congo cesses of legislation which are an essential part of our I" Sess. (February 18, 1935). system of government." Id. at 430. See Roy G. Tulane, " Joseph H. Mueller, "Constitutional Law-Delega­ "Constitutional Law-The Oil Control Provisions of tion of Legislative Power-National Industrial Recov­ the N.I.R.A.," 10 Wise. L. Rev. 301,304-05 (1935). ery Act," 23 Ill. B. J 269,270 (1935), (citing Theodore "Jd. at 426. W. Cousens, "The Delegation of Federal Legislative 51 /d. at 430, (quoting Hamplon & Co. v. United Stales, Power to Executive Officials," 33 Mich. L. Rev. 512, 276 U.S. 394, 409-11 (1928», The opinion went on 544 (1935) {"tbose who look to the Supreme Court to identify "another objection to the validity of the for protection against extensive delegations to the 102 JOURNAL 1998, VOL. I

Executive should not take too much confidence from this tion of authority to the President to deter­ decision. No substantial barrier to delegation is raised by mine anything before such law would be­ the Panama Refining Co. case. A standard must be set, but come operative. previous cases teach how vague such a standard may be .. .The Court has indeed set a limit, but it is formal rather H. Rep. No. 148, 74m Congo I" Sess., at 3-4 (1935); see than substantial and the slightest care in bill drafting will Comment, "Interstate Regulation of 'Hot Oil,''' 23 avoid infringing it. AUin all, we may conclude that the ?eo L J. 487,492-94 (1935), case changes nothing and that it, importance can very eas­ In the Hal Oil Cases, Connally remarked on the ily be exaggerated"). See also Note, "Delegation of Power floor, "The Supreme Court held" and I think prop­ by Congress," 48 Harv. L. Rev. 798, 806 (1935) ("the new erly so--that the Congress did not possess the power requirement [of a finding] may accompl ish no more than to delegate authority to the President to put the pro­ to add a formality to the issuance of an executive order"). hibition in effect or not in effect as he might deter­ 56 Franklin D. Roosevelt, Remarks at Press Conference mine ....The Court indicated, in harmony with other (Jan. 9, 1935) quoted in Schlesinger, supra note 45, al decisions heretofore made, that had the Congress set 255."[T]he mistakes involved seemed easily remediable, up a standard or a measure by which the President and the administration took the adverse decision philo­ could determine when and when not the shipment of sophically." [d. William Swindler agreed: "careless drafts­ oil should be prohibited the act would probably have manship ... proved to be the crux of the matter, and the been held valid." 79 Cong Rec. 693-94, 74'h Congo 1" optimists among the Presidential advisers professed 10 see Sess. (January 21, 1935). no serious threat to their general statutory program emerg­ 60 As Connally explained it, "In the first section of the ing. .. In the 'hot oil' decision .. .the optimists took heart bill there is a declaration of the policy of the Congress. from the fact that the point was a procedural one which One of the suggestions in the decision of the Supreme could be remedied by statute ...." Swindler, Court and Court was that Congress had not declared any particu­ Constitution in the Twentieth Century: The New Le­ lar policy but had merely delegated its authority to the ~jllity, 1932·196833 (1970). President. The declaration of policy here is that in Ickes, supra note 46, at 273. order to remove the burden of interference with inter­ 58 S. ! 190,74"' I" Sess. (1935), introduced at 79 state commerce by contraband oil, and in order to Cong. Rec. 632, Cong. I" Sess. (January 18, 1935). cooperate with the various states to that end, the Con­ The Committee on Mines and Mining reported the bill gress prohibits the interstate shipment of oil and oil back favorably the same day. !d. at 649. The two-and­ products when the parllcular oil has been produced or one-half page report, which consisted principally of refined or handled in violation of some State law or quotations from the Panama Refining opinion, char­ some valid regulation or order of the State commis­ acterized the new bill as "a substantial but somewhat sion .... Section 2 then absolutely prohibits the ship­ elaborated reenactment of section 9(c) of the Na­ ment in interstate or foreign commerce of oil pro, tional Industrial Recovery Act. ..." See S. Rep. No. ~pced in violation of state law or regulations." [d. 14, 74,h Congo I" Sess. ) (1935). The report of the Id. See also remarks of Sen. Connally, id. at 753; House Committee on Interstate and Foreign Com­ remarks of Rep. Dies, id. at 2 I 24; remarks of Rep. merce, issued on Valentine's Day, explained what had Wolverton, id. at 2135-36; remarks of Rep. Dempsey, been wrong with section 9(c) and how the new biU id. at 2150. Senators King and Borah raised delegation repaired the problem. objections to Section 3 of the bill, which authOrized the President or his duly designated agent or agency to Section 9( c) did not declare anything make such rules and regulations as might be found to be illegal until the President should so de­ necessary or appropriate to effectuate the purposes of clare. In making such declaration, the Con­ the act. !d. at 762. Connally responded that this sort gress, in the opinion of the Supreme Court, of delegation had been repeatedly upheld by the Court, did not require the President to adhere to any citing as an example United Slates V. Grimaud, 220 legislative policy, or to follow any standard U.S. 506, in which the Secretary of Agriculture had laid down by it, or in fact to be guided by any been given very broad power to make rules and regula­ rule. No particular circumstances, or condi­ tions with respect to the forest reserve. 79 Cong. Rec. tions were set forth as a perquisite [sic] to 763, 74" Congo I" Sess. (January 22, 1935). Borah the President'S declaration. The Supreme responded: "Yes; I know the Supreme Court has upheld Court construed this action by Congress to in some instances these regulations, under certain cir~ be an invalid delegation of authority. cumstances, but I invite the Senator's attention to the fact that when these cases were first presented 10 the In S. J 190, as amended, Congress de­ Supreme Court of the United States, rules and regula­ clares in no uncertain terms that such ship­ tions, the violation of which constituted a crime, were ments, or transportation, in interstate com­ held invalid. The Court modified its position upon the merce as defined therein, is prohibited, and question. I venture to say that if we continue to make violations of such Federal law is [sic] punish­ these rules and regulations by the thousands and thou­ able in the manner prescribed, Immediately sands, the violations of which constitute a crime, the upon the passage of this act, therefore, ship­ Supreme Court wHl go back some of these days to the ments in interstate commerce of petroleum very sound and safe rule which it announced in the and petroleum products, as defined, become beginning when it first dealt with the question. There a violation of the law and there is no delega- may come a time, as in the decision in the oil case, CHARLES EVANS HUGHES 103 when the Court will conclude a danger point has been den on, or restriction of, interstate commerce reached," ld, at 763-64, Connally replied, saying, "In in petroleum and the products thereof. a large measure I agree with the Senator in the idea that it is rather drastic to authorize any department to Under this language the President, we assume, will re­ make rules and regulations punishable by fine or im­ quire a factual basis for his finding, that factual finding prisonment, but the principle has been established and being addressed to what limitation there is upon the followed over and over again, Under this particular supply moving in interstate commerce and whether measure, of course, the Department cannot prescribe there is a lack of parity between such supply and de­ any rule beyond the scope of the direct authority which mand, This is a definite requirement, a statement of the Congress grants," ld. at 764, See also the colloquy circumstances and the imposition of conditions, all of between Rep, Disney and Rep, Cole of Maryland, id. at which must be determined before the President can 2146, act. This power in the President presupposes a definite 62 ld, at 764; id, at 2150, Hughes' specific advice on finding and a statement of the facts for the President's how to frame a constitutional delegation was not action before any such action is taken," H, Rep. No. wasted, Section 4 of the Connally Act provided that 148, 74th Cong, I"' Sess., at 4 (1935). See also H, Rep. "Whenever the President finds that the amount of 2155, 74 1b Cong, 1" Sess" at 5 (I935), There are no petroleum and petroleum products moving in in­ reported cases challenging the validity of section 4, terstate commerce is so limited as to be the cause, 63 Comment, "Constitutional Law Delegation of in whole or in part, of a lack of parity between Legislative Authority," 1 Mo, L. Rev, 68, 70 (1936), supply, ,and consumptive demand, , , resulting in an See also Isador Loeb, "Constitutional Interpretation undue burden on or restriction of interstate commerce in a Transitional Period," 21 Sf. Louis L, Rev, 95, 102 in petroleum or petroleum products, he shall by proc­ ~1936) lamation declare such finding, and thereupon the pro­ Note, "Constitutional Law-Delegation of Legisla­ visions of section 3 [prohibiting interstate shipment tive Powers-'Hot Oil'-NlRA," 3 G.W L. Rev, 391, of "hot oil"] shall be inoperative until such time as the 392-93 (1935), President shall find and by proclamation declare that 65 Note, "Delegation of Legislative Powers to the Ex­ the conditions which gave rise to the suspension of the ecutive-the NIRA Oil Case," 2 U. Chi, L. Rev, 632, operation of the provisions of such section no longer 636 (I935), For other optimistic assessments of the exist." c, 18, section 4, 49 Stat. 30 (1935), As Repre­ Act's chances before the Court, see Note, "Constitu­ sentative Charles Wolverton observed, "The House tional Law-Delegation of Powers-Validity of Act committee, has placed in this bill something of a of Congress Conferring Discretionary Authority Upon safety valve, in that the President is authorized and the President," 12 NYU. L. Q. Rev, 520, 522 (J 935); empowered to suspend the act if it should appear that George K. Ray & Harvey Wienke, "Hot Oil on Un­ the limitation or control of production of crude oil charted Seas of Delegated Powers," 29 lll. L. Rev. 102 J, was detrimental to the national interest. If that provi­ 1034-35 (1935); Comment, "Interstate Regulation of sion had not been placed in this bill, it would have left '.!I0t Oil,''' 23 Geo L. J. 487, 494 (1935), the entire matter to the judgment of an oil producing See Genecov v. Federal Petroleum Board, J46 F. 2d state as to what quantity of crude oil should go into 596 (5th Cir., 1944); The President of the United States interstate commerce, .. , [The bill as amended] has not left v. Skeen, J 18 F, 2d 58 (5th Cir., 194 I); Hurley v, it entirely to the State to detennine, without regard to the Federal Tender Board No, 1, 108 F. 2d 574 (5th Cif., rights of the consuming public, how much oil shall go into 1939); Griswold v. The President of the United Stales, interstate commerce. Provision has been made that when­ 82 F, 2d 922 (5th Cir., 1936); President of the United ever the President finds there is such a limitation of pro­ States v, Artex Refineries Sales Corp" 11 F. Supp. 189 duction as might be harmful to the consuming public he ~9,D Tex" 1935), can act to suspend the provisions of this bill. Thus there is United States v, Powers, 307 U,S, 214 (1939), a safety valve provided in this bill. , . , ," id. at 2136, The 68 Ch, 824, 49 Stat. 991, 995-100 I, section 4, part II House report explained the marUler in which the proviso (1925) (repealed 1937, as noted in 15 U,S,c. sections had circumscribed the President's discretion in compliance 80 I -827). with the Panama Refining decision-"The committees 69 ld, at 1001 -02, section 4, part Ill, 70 . ' inserted the proviso found in the bill, which does not arbi­ See Barry Cushman, Rethinking the New Deal trarily delegate to the President the power to declare the Court: The Structure of a Constitutional Revo­ law to be inoperative in his sole discretion, but only when lution 159-61 (1998), he finds that the circumstances exist which are set forth in 71 298 U,S, 238 (1936), the statute. Congress says to the President in effect in the 71 ld, at 312- 16, language of the amendment- 73 ld, at 3 J 7-24 (separate opinion of Hughes, C.J,). 74 ld. at 324 (Cardozo, 1., dissenting), Cardozo main- You are permitted to declare the existence of tained that "the suits are premature in so far as they the facts by which this law shall be inopera­ seek a judicial declaration as to the validity or invalid­ tive whenever you find that the supply of ity of the regulations in respect of labor," and accord­ petroleum and the products thereof, moving ingly did not consider the validity of those provisions. in interstate commerce, is so limited as to ld, cause in whole or in part a Jack of parity be­ 75 ld. at 336, tween supply, including imports, and demand, 76 See Comment, "Constitutional Law-The Guffey including exports, resulting in an undue bur- Coal Act Decision and the Future for Federal Price 104 JOURNAL 1998, VOL. I

Regulation," 16 Ore. L. Rev. 67,79 (1936) (noting that "by both public and private interest, if it be fairly within stabilizing [through price regulation] an industry in des­ delegated power our obligation is to sustain it. On the perate economic plight and placing it in a position where other hand, though we should think the measure em­ it can afford to pay decent wages to labor, Congress may bodies a valuable social plan and be in entire sympathy avert much ofthe damage 10 the public welfare from labor with its purpose and intended results, if the provisions difficulties, and much of the need for direct regulation of go beyond the boundaries of constitutional power we wages, hours, and other labor conditions, which cannot be so declare." 295 U.S. al 346. constitutionally imposed, in the opinion of the Supreme /d. at 348-57. Court at the present time''). See also Comment, "The Bi­ n Jd. at 362. tuminous Coal Act of 1937," 25 Geo. L. 1. 986,989 (1937); 93 "Classes of persons held to be improperly brought H. Rep. No. 294, 75'" Congo I" Sess., at 2 (J 937)("It is the within the range of the Act could be eliminated. Criti­ opinion of the committee that the stabilization of prices cisms of the basis of payments, of the conditions pre­ which the bill seeks to effect and the resulting guarantee to scribed for the receipt of benefits, and of the require­ operators of a fair price for their coal will go a long way ments of contributions, could be met. Even in place of toward stabilization oflabor conditions in the industry and a unitary retirement system another sort of plan could toward the guarantee to the miners of satisfactory working be.4 worked out." [d. at 375. conditions and a living wage"). ld. at 375. 71 See "Constitutional Law-The Guffey Coal Act 95 ld. at 374-75. Decision," supra note 76, at 67, 71-79; Note, "The 96 See, e.g., Comment, "Constitutional Law-Rail­ Final Phase of the Schechter Episode: Carter v. CarieI' road Retirement Act," 4 Fordham L. Rev. 498. 499, Coal Co.," 5 Brooklyn L. Rev. 454,469-70 (1936); 501 (1935); Comment, "Constitutional Law-~Due Comment, "The Bituminous Coal Conservation Act Process-Interstate Commerce-Power of Congress ?sf 1937," supra note 76, at 992-93. to Provide for Compulsory Retirement and Pension 50 Stat. 72 (1937). System for Carriers," 20 Minn. L. Rev. 49, 55-56 (1935); 79 See S. Rep. No. 252, 75" Congo I" Sess., at 4-5 Comment, "The Railroad Retirement Acts", 10 St. (1937); H. Rep. No. 294, 75" Congo I" Sess., at 11-14 John's L. Rev. 53, 58-59 (1935); Comment, "Consti· (1937); remarks of Rep. Dirksen, 81 Cong. Rec. 2120, tutional Law-Railroad Retirement Acts," 25 Geo. L. 75'h Congo I" Sess. (1937); remarks of Sen. Guffey, id. 1. 161 , 173 (1936); Comment, "Constitutional Law­ at 2950-52; remarks of Sen. Borah, id. at 2956; re­ The Railroad Retirement Act--Interstate Com· marks of Sen. Neely, id.; remarks of Rep. Vinson, id. at merce-Due Process," 33 Mich. L. Rev. 1214, 1220 2033-34, 2036-38; remarks of Rep. Jenkins, id. at (1935); Bruce R. Trimble, "The Judicial Treatment of 204 1-42. the New Deal," 4 Kal1. City L. Rev. 104, 107 (1936). 80 See. e.g., Nebbia v. New York, 291 U.S. 502, 539 See also "Radio Address of Hon. John A. Martin, of \j934) (McReynolds, J., dissenting). Colorado, on March 6, 1937," reprinted in 81 Cong. 291 U.S. 502 (1934); H. Rep. No. 294, II 751h Rec. Appendix 435-37, 75" Congo I" Sess. (1937); Congo I" Sess. (1937); remarks of Rep. Guffey, 81 Samuel Hendel, Charles Evans Hugbes and the Congo Rec. 2953, 75"' Congo 1" Sess. (1937): remarks Supreme Court 231-32 (1951); Wi lliam E. of Rep. Vinson, id. at 2030, 2034, 2038-39; remarks Leuchtenburg, The Supreme Court Reborn 46-47 of Rep. Jenkins, id. at 2042. \~ 995). 82 /d. at 2039. See also Comment, "Constitutional Ralph F. Fuchs, "Judicial Method and the Constitu­ Law-Bituminous Coal Conservation Act of 1935- tionality of the N.I.R.A.," 20 SI. Louis L. Rev. 199, Congressional Power Under the Commerce Clause to 209 n.34 (1935) (emphasis mine). See also Comment, Regulate Labor Conditions in Local Industry and Fix "Constitutional Law-Unconstitutionality of the RaiJ­ the Price of Sales in Interstate Commerce," 34 Mich. road Retirement Act-Limitation on Power of Con­ L. Rev. 1167, 1178-79 ( 1936) (suggesting that Nebbia gress Over the Instrumentalities of Interstate Com­ provided authority for federal regulation of the price merce," 35 Co/um. L. Rev. 932, 933 (1935) (suggest­ of coal sold in interstate commerce); "Constitutional ing that the powers to tax and spend were "broader in Law-The Guffey Coal Act Decision," supra note 76, scope than the Gommerce power," and might there­ at 76-79. fore permit congressional legislation creating a pen­ SJ See, e.g., remarks of Rep. Jenkins, 81 Congo Rec. sion system for railway employees). 2041, 75'h Congo I" Sess. (March 9, 1937). 98 1d. S4 Ralph Baker, The National Bituminous Coal 99 See Note, "Constitutional Law-Railroad Retire­ Commission 66 (1941). See remarks of Rep. Jenkins, ment Acts," supra note 96, at 165-66, 170. 81 Congo Rec. 2044, 75" Congo I" Sess. (March 9, 100 Asked by Senator Duffy whether the revised Rail­ remarks of Rep. Casey, id. at 2047. road Retirement Act met the objections raised by the See Cushman, supra note 70, at ! 95. Court in AlIon, Senator Wagner responded that Alton 87 81 Cong. Rec. 2952, 75" Congo I" Sess. (1937). "was based upon the ground that we had no authority, /d. at 20n under the power to regulate interstate commerce, to 88 Sunshine Anthracite Coal v. Adkins, 310 U.S. 38], retire old railway employees.... Under this bill. .. we ~?6-97 (1940). are proceeding on an entirely different theory, namely, Act of June 27, 1934, c. 868, 48 Stat. 1283. the power of Congress to impose taxes." 79 Congo "" "The fact that the compulsory scheme is novel is, Rec. 13646, 74'h Congo I" Sess. (August 19,1935). In of course, no evidence of unconstitutionality. Even the House, Rep. Monaghan pointed out that Roberts' should we consider the Act unwise and prejudicial to Alton opinion had held "that the power 'to regulate CHARLES EVANS HUGHES 105 commerce' did not carry with it the power to provide mittee of the Senate, the Interstate Commerce Com­ pensions. He did not say we could not pay an annuity mittee of the House last year devoted several months out of the Treasury of the United States. [That] is the to the study of this whole subject. Hearings covered a of this bi 11." Id. at 13671. period of at least one month. Expelts upon this ques­ 102 49 Stat. 967 (1935). tion, those representing th e railroad point of view and 49 Stat. 974 (1935). those representing the employees' point of view, were 103 [t all began when Senator Hastings asked why the heard. In view of this long study, it would seem a ludi­ provisions imposing the taxes and the provisions au­ crous procedure to send the measure deliberately to thorizing the appropriations were not all in one bill, as another committee which would have to begin the they were in the Social Security Act. Senator Wagner heari ngs all over again and study the question de novo." responded cryptically that it was "a matter of proce­ ld. dure." Senator Robinson came to Wagner's rescue, ex­ Robinson then laid bare the issue Hastmgs had plaining that "Normally the Committee on Interstate been sniffing around. "I assure the Senator from Dela­ Commerce has jurisdiction of railroad pension legisla­ ware that the course which has been pursued does not tion. Always the Finance Committee has jurisdiction invol ve legerdemain, if that is what the Senator is of tax legislation. In the case o f the social-security intimating. "I am glad the Senator assures me of that," bill, it was my personal thought that it would be better Hastings rep lied, "because I am very suspicious of it . . . In to separate the legislation, to have the administrative this case a very clever thing has been done, by design or and other provisions in one measure, and the tax pro­ otherwise, which is to separate the granting of a pension vision in a separate measure; but that course was not from the levying of the tax .... I say that that in my Judg­ followed. In the case of the railroad pensions, that ment makes very much more certain the constitutionality course is being followed, and I believe it is the best of the two ac ts, but I say in doing it Senators are violating practice." 79 Cong. Rec. 13646, 74'" Congo I" Sess. the spirit of the Constitution, and what I am trying to find ( 1935). out is whether or not it has been done deliberately and for Hastings was not satisfied. "May I inquire," he the purpose of making more certain the constitutionality mquired, "whether there is any objection to adding a of these two bills." Id. new title to this bill, including the tax:, instead of pass­ Wagner stuck with Robinson's game plan, insisting, ing a separate bill?" "Yes; there is a valid objection," "I know of no such deliberate design. I think a very clear Robinson responded, "[T]he Senate has no power to and persuasi ve explanation was made as to why the two originate a revenue measure, and the body at the other bills went to the separate committees." But Robinson, see­ end of the Capitol probably would take the view that ing a forensic opportunity where Wagner did not, had we were originating a revenue measure if we put into shifted ground. this bill a provision for the tax 10 which the Senator is "If the Senator from Delaware is in sympathy referring." "May I inquire. ,why it was that the House with rai lroad pension legislation, if he believes that it made these two separate bills'?" Hastings persisted. ought to be enacted, he certainly cannot object to any "There was no reason why the House could not add the course the Congress might decide to take which would taxing feature to the bill. Why did they not make it in tend to sustain the legislation after it had been passed," one bill?" "That is the business of the House," was he contended. 'There is nothing wrong, there is noth­ Wagner's curt if somewhat juvenile response. lei. at ing immoral, and there is nothing treacherous in sepa­ 13647. rating the two subjects. They ought to be separated for Robinson's tactic was to return to the theme of the reasons which I gave a few moments ago." Here he committee jurisdiction: "Mr. President," he ex.p la ined, rejoined Wagner. "One committee is familiar with the "it mayor may not have been due to my own sugges­ subject matter of one phase of the legislation; another tion. I felt then and still feel that the committee which committee is familiar w ith the subject matter of the has jurisdiction of the legislation to provide for pen- tax legislation. Yet the Senator from Delaware is sus­ to work out the administrative features, is a picious that there is something wrong with the policy committee fro m that which has the tax-rais­ of passing two bi ll s--one as a tax bill. We seldom put ing authority, and I think the course that has been tax legislation in the bills we enact for the expenditure pursued is the better course. Our committee formu­ of money. It was the consistent course which was pur­ lated the legislat ion-a committee which is familiar sued," Id. at [3647-48. with the subject matter of th is bill. The taxing com­ Here Senator Borah drove home Robinson's defense mittee, the Ways and Means Committee, is composed of separating the bills as a constitutional strategy. "I of men of eminence and of ability; nevertheless they understand the question which is raised here is to what have not made the studies and do not possess the knowl­ the effect constitutionall y will be by reasoo of provid­ edge of this particular subject which is essential to ing the two measures," he observed. "Suppose ... the proper formulation of the legislation. So I think the legislation is brought within the Constitution by reason which the House has pursued is a good one. I am of that fact, is it not our duty to do that very thing?" At this willing, if the Senator thinks otherwise, to point Wagner again caught up to his colleagues, half ad­ get them to reverse their action if he can do mitting what he had denied a moment earlier. "That is what the Senator from Arkansas suggested," he agreed, "and I Wagner had by this point caught on to Robinson's tried to suggest that if we are friends of this measure and strategy, and now chimed in: "Mr. President, let me anxious to provide a pension for the employees, if the Sena­ say, in line with th e suggestion of the Senator from tor is right, that is the very course which we ought to pur­ Arkansas, that like the Interstate Commerce Com- sue." Id. at 13648. 106 JOURNAL 1998, VOL. I

There followed a colloquy among Senators Wagner, date of this particular act; so that ample time will be af­ Fletcher, and Barkley, in which it was made clear that the forded to study that very question." /d. pensions were to be paid out of the Treasury "out of any Not quite satisfied, Tydings replied: "Even so, if! may funds not otherwise appropriated," and that while the tax so ask the Senator, J request that he ascertain if the Trea­ "has been out so as to confonn to the actuarial sury would look with favor upon it; and if the Treasury ofthe pension legislation, there was a "theo­ should look with favor upon it and the author of the bill retical relationship between the two" bills, "but not a di­ should do so, 1 should like to see such a provision incorpo­ rect connection." Id. 13648-49. For a similar discussion in rated into the law. If subsequently after the examination the House, see id. at 13670·71 (remarks ofMr. Hollister). shall have been made, he should find that the money should This prompted Senator Tydings to launch the second of­ be covered into the general fund for one reason or another, fensive against the proponents' constitutional strategy. that would be a different thing. I do not like to start the bill Throughout the discussion that followed, Tydings never out in that fonn ifi! can be avoided." At this point Wagner once let on that his suggestion, if adopted, might compro· asked to be let off the hook. "At th is late date," he replied mise the constitutional strategy that Jay behind the separa­ to Tydings, "I hope the Senator wil l not press the sugges­ tion of the bills. Nevertheless, it clearly would have tended tion, because the commission will be in a position to stUdy to do so. the question and to report to us before any tax is imposed Tydings' suggestion was to earmark the tax and in accordance with the design of this bill." Id. pay its proceeds into a separate fund rather than mix­ Tydings did not press the suggestion, but Hastings ing them in with the general revenue. "I should much rejoined the colloquy to suggest that segregation of rather have this fund segregated and the retirement the funds rather than payment of the pensions out of benefits paid out of such fund than have the Treasury the Treasury would be fatal to the scheme's constitu­ of the United States, without any limitation whatso­ tionality. Wagner attempted to cut Hastings short. ever, become the source from which these payments "There is no need of going into that; I know the are to be made," said Tydings. "I believe it is extremely Senator's point of view from the standpoint of the law bad policy to have the Federal Government made the upon this subject; but there is no need of our pursuing bank to pay pensions of this character. . " {d. at it any further. The courts will finally have to speak 13649. upon that question." /d. at J 3649-50. Wagner sought to fend him off by vouching for But Hastings had to have the last words, and they the plan's actuarial integrity, "The calculations are dripped with barely concealed sarcasm and disdain. "Mr. definitely made; they are predictable as to the amount President, r think this method of legislating is estab­ which will be required in order to secure a solvent fund lishing an exceedingly bad precedent. I was delighted for the payment of these pensions; and a sufficient tax to hear the Senator from New York [Mf. WAGNER] is imposed to secure that fund. So whether it be segre­ suggest that it was not designedly done, I had the dis· gated or put into the general fund of the Treasury is tinct impression that the Social Security Act, as to the really a very minor matter." /d. constitutionality of which many of us had serious doubt, If it was such a minor matter, Tydings replied, "I was divided into separate titles because the fear was take it the Senator would have no particular objection existent that if the n.lIld were segregated, as the Sena­ to segregating these funds under the Railroad Retire· tor from Maryland [Mr. TYDINGS] suggested he would ment Board?" Wagner hedged, professing solicitude like to see done, there would be very grave danger of for employees of the Treasury Department: "] should the act being declared to be unconstitutional. "when want to consult the Treasury authorities. I think per­ I found in these two bills that the two proposals are haps such segregation would impose upon the Trea­ separated entirely, J reached the conclusion that some sury Department unnecessary bookkeeping and un­ smart person had probably thought he would be able to necessary work. It is a matter that I do not regard as circumvent the Constitution in that way. I was not very important, so long as the calculations are defi­ certain and I am not now certain whether the Supreme nitely made, and that can be done," Tydings then ex­ Court may take the two acts together in order to de­ pressed his wish that Wagner "at the very first oppor­ tennine whether both or either may be constitutional. tunity. , .consult the Treasury about the advisabil ity of "As an illustration, when we pass the second bill having these moneys segregated into a separate fund," to providing for a tax upon railroads, there is no doubt which Wagner responded, "Very well." "I am certain," that nothing in that measure will show the purpose for Tydings persisted, "if the bill were now so worded that it which the tax is levied. The Federal Government may wouW attract support which otherwise might not be present. take it, may pay the pensions due the World War I think some Senators feel that a matter that is extraneous veterans, may use it for relief, may use it to assist the to the Government such as these funds, only being admin­ farmers, may use it as the Federal Government may istered by the Government, ought not to be confused with use any other part of the general fund which comes the general revenues of the Government." /d. into the Federal Treasury. That is undoubtedly true, Here Wagner became conciliatory. "I may say that the There is no eannark to the taxation ....But the query Senator raises a question really worth while," he conceded. I have in mind is whether or not the Supreme Court may "Under this bill a commission is to be appointed to make look at the two acts and detennine that the tax was levied an investigation of all the matters that relate to this whole for a purpose. subject. ... The commission may, among other things, study "( do not raise the objection here for any other the very question which the Senator has raised. Further­ reason than to caution the Senate against this kind of more, the commission is to report to the Congress on Janu­ legislation which separates a tax bill from the purpose ary I next, which will be 3 months prior to the effective of the tax itself. I think unless we can combine tbe CHARLES EVANS HUGHES 107 two, and safely combine the two, we ought not to the Reti rementAcl., , [T]he purpose of Congress in pass­ enacl il at all. I am not in favor of circumventing the ing [the Taxing Act] is clearly as shown , , , to provide spirit of the Constitution in any way, We have devel­ funds for pensions, , , and not to provide for the expenses oped new and important mi nds recently, They have of the government." That being so, "it would seem to be new ideas, It seems to me that this is one idea which immaterial whether the funds raised by the tax act are to they might be able to 'put over,' I am glad, in view of be segregated in the Treasury; that would be a mere matter that thought, to hear the Senator from New York [Mr, of bookkeeping, and would not affect the right of the tax­ WAGNER] say it was not done designedly, that it was payer," ld. at 957, not for any such purpose as that. Several commentators had predicted this fate for the "With that statement in the record I assume the 1935 pension legislation, See, e,g" "Constitutional Law­ Supreme Court, when they come to consider one of Railroad Retirement Act," supra notc 96, at 499, 501; "Con­ these acts, will feel justified in considering both of sti tu tional Law Due Process-Interstate Commerce­ them and reading the record in order to ascertain Power of Congress to Provide for Compulsory Ret irement whether or not we have done a lawful thing," Jd, at and Pension System for Carriers," supra note 96, at 55- 13652. 56; "The Railroad Retirement Acts," supra note 96, at 58- In the House, Rep, Merritt echoed Hastings' ob­ 59; "Constitutional Law-Railroad Retirement Acts," su- jections, "Mr, Speaker, I do not propose to make any note 96, at 173, general speech or argument against this bi ll, but I think This is reported in B. & 0. R Co. v, Magruder, 77 F. the Members of the House, if they do not appreciate Supp, 156, 156-57 (D. Md" L9 48), already what it is proposed to do, should have it called '0» As Rep, Lea, Chairman of the House Committee on to their attention, What we are doing today is to reen­ Interstate and Foreign Commerce explained in intro­ act a part of a bill which has al ready been declared ducing the Railroad Retirement Act, "Representatives unconstitutional. The way it is proposed to avoid the of the 2 L standard railway employees' organizations decision of the Supreme Court is to divide the btll into representing substantially all railway employees on two bills, and pass this bill, which gives the people who class I railroads participated in the negotiations, Rail­ are affected by it, a general claim on the United States way management representing 98 1/2 percent of the Treasury; and then this afternoon to pass an appro­ total mileage of class I railways of the United States priation bill to cover the supposed expense which will participated in the negotiations, Class railroads, as be incurred by this pension bilL" !d. at 13673, See also the membership of the House is aware, embrace every f£marks of Rep, Hollister, id. at 13671 , ra il road whose annual income is over $1,000,000, Alton R, Co. v. Railroad Retirement Board, 16 F. Supp, "Members of the Federal Railroad Reti rement (Dis!' 0 .c., 1936), Board participated with representatives of the man­ ld, at 956-57, agement and men in these conferences, Finally an ''''' "The two taken together so dovetail into one another as agreement was reached, the substance of which was to create a complete system, substantially the same as that embodied in a bill brought before the I nterstate and created by the Railroad Retirement Act of 1934, , . , The Foreign Commerce Committee of the House, As a provisions of the two acts in question are so interrelated result of the hearings and further consideration of that and interdependent that each is a necessary part of onc measure by our committee a number of changes were apparent from the terms of made which were approved by these two groups and by the ir legislative his- embodied in the bill now presented to the House," 81 of Congress that the pen­ Cong, Rec, 6080-81, 75'h Cong, I" Sess, (June 21, Act should be sup­ 1937), The Committee Reports similarly noted that the carriers and their em­ "The pending bi ll has received the endorsement of ployees, Jd, at 956, "In the case at bar. , ,the interlocking both the labor organizations and the carriers, expressed and interdependent provisions of the two acts and their in hearings before the committee," H, Rep, No, 1071, legislative history do show an attempt to accomplish un­ 75'" Cong, I" Sess" at 2 (1937), See also S, Rep, No, der certain of its powers an end which has been held to be 8 18, 75'h Cong, I" Sess., at 2 ( 1937), which adopted unconstitutional," Jd, at 957. "(F) rom what has been said the House report as ils own, it necessarily follows that the two acts are inseparable parts As Representative Doughton explained, "The of a whole, that Congress would not have enacted one with­ matter was given long and painstaking consideration, out the other, that the taxes levied under the tax act are the and was thoroughly discussed with Ihe employers, the contributions required under the act of 1934, , ,This be­ employees, and representatives of Ihe Treasury De­ ing true, it is clear Ihat under the views of the Supreme partment. After long and deliberate consideration the Court in the Aflon case the taxi ng act transcends the pow­ measure now has unanimous support, It is agreed to by ers ofCongrcss, The pension system so created is substan- those who wil l pay the tax, it is acceptable to the tially the and, apart Treasury of the United States, and it has the un ani­ from its to the same mous Sllpport of the Committee on Ways and Means," objections in certain particulars as those pointed out by 81 Cong, Rec, 6302, 75'" Cong, I" Sess (June 24, 1937), the Supreme Court in that case," /d, at 958, The court idcn­ "Representatives of the rai lroad men, represented by tified some of those particulars id , at 959. Mr. George Harrison, president of the 21 brotherhoods, The court rejected the claim that the two acts had to came before our committee," noted Representative be considered entirely separately because "the funds aris­ Jenkins, "and ind icated that they favored this legisla­ ing from the taxing act are not 'ear ma(ked,' not kept as a tion, The railroad executives, represented by Mr, separate fund for the payment of pensions provided for in Fletcher, a capable and able representative, stated that 108 JOURNAL 1998, VOL. I

they, too, were in favor of this legislation." Jd. at 6303. tive Fish asked: "Is any of th is money earmarked for Representative Wolverton reported that the District Court's this purpose when it goes into the Treasury?" injunction "prompted the President to suggest to represen­ Representative Fred Vinson replied that it was not. tatives of ra ilroad labor organizations and railroad man­ "This is a taxing bill that produces revenue collected agement that an effort be made to work out between them by the Bureau of Internal Revenue. The revenues go a retirement plan which would be mutually satisfactory. directly into the Federal Treasury, the general fund of "In accordance with the suggestion of the President, a the Treasury." Fish responded, "I simply want to ask committee was appointed by the Association of American the gentleman if there is any reason why this money Railroads to confer with a committee appointed by the should not be earmarked for this specific purpose," Railway Labor Executives Association, representing the Vinson replied that "So far as this act is concerned, employees, As a result of the conferences held by these the act covers the money into the Treasury of the two representative groups the plan of retirement was agreed United States. Congress has the power to appropriate upon and is embodied in amendments to the existing law. this money just as tbey appropriate all other money The bill now before the House. , . represents that plan as that goes into the general fund of the Treasury," agreed upon by the carriers and their employees and ap­ This was unresponsive, and Fish told Vinson so. proved by the Committee on Interstate and Foreign Com­ "But the gentleman has not answered my question. merce after careful study and extensive hearings. The en­ Why should it not be earmarked?" actment of this bill in its present fom1 has been agreed The future Chief Justice answered: "Because, from upon by all the interested parties," The bill "represents the beginning of our Government, until now, as I am absolute and complete unanimity of thought and desire informed, the policy of the Treasury has never been between management and men. There is no feature of this to eam1ark money coming into the general fund of the bill that presents any controversy or disagreement as be­ Treasury,. ," But "What about the Congress?" re­ tween these two parties. Evcry provision has the support torted Fish. "Cannot Congress do that?" Here Vinson of both without any reservation on the part of either. It was finally forthcoming: "I recall one instance when represents a unified effort to produce legislation that will the Congress attempted to collect taxes for a special be satisfactory and mutually beneficial, and comes before purpose, which may be characterized as earmarking-­ the House with the united support of railroad management it was the Agricultural Adjustment Act. The process­ and all the standard brotherhoods," ld at 6084-85, See also ing taxes were held by the Supreme Court to be an id. at 6302 (remarks of Rep. Snell); id. at 6085-86 (re­ exaction which, under the act, did not go into the marks of Rep, Martin of Colorado); id. at 6087 (remarks general fund of the Treasury, but were used for a spe­ of Rep. Mapes); id. at 6087-88 (remarks of Rep. Cole of cific purpose which the Supreme Court held to be be­ Maryland); id, at 6089 (remarks of Rep. Mead); id. at 6092 yond congressional power. I am certain that my friend (remarks of Rep. Raybum); id, at 6222 (remarks of Sen. from New York will recognize that a recurrence of Wagner); id, at 6224 (remarks of Sen, Wheeler); id at 6227 that sort of thing is not desirable. So ! repeat that this (remarks of Sen, Barkley). act is what it says it is'''''lhe Carriers Taxing Act of Sponsors also explained the consHtutional theory of 1937-a revenue bi!l in which the revenue wi!1 be col­ the plan, and the reasons why it was being enacted as two lected by the Bureau of Internal Revenue, as other bills rather than one. Representative Jenkins explained that taxes are collected, and they will become part and Hit was thought advisable to divide these bills and permit parcel of the general fund of the Treasury of the United the bill providing the amount the railroads should pay and States." Id. at 6303-4. the manner of payment and all incidents thereto to be con­ If Mr. FIsh thought that such a reCUlTence would sidered by the Ways and Means Committee, which of right have been desirable, he did not say so, Debate con­ should consider it And it was also thought advisable that cluded and the bill was passed without a record vote. another bill should be introduced providing who should be fd. at 6304. The bill passed the Senate without debate entitled to draw this pension and how much each class without a record vote. ld. at 6345. should draw, and also to provide what age men shOUld be Remarks of Sen. Davis, id. at 6227. This echoed the required or be eligible to draw the pension." ld. at 6091. encomiums of the Committee Reports, which stated: In the Senate, Senator Davis explained that "The mea­ "we wish to commend both the carriers and the em­ sure now before us is not predicated upon the power to ployees upon the great ability they have shown to regulate commerce, but upon two separate and distinct adjust matters of this sort througb normal process of powers vested by the Constitution in Congress, neither of collective bargaining. The agreement as to this mea­ which was involved in the case holding the Retirement Act sure constitutes a landmark in the history of industrial of 1934 to be void. relations in this country," H. Rep. No, 1071, 75'h Cong. I" "The measure now before us is predicated upon Sess., at 2 (1937); see also S. Rep. No, 818, Cong. 1st the right of Congress to appropriate money. Section Sess., at 2 (I937). Chairman Lea echoed these views on 12 authorizes an appropriation for the purposes of the the floor ofthe House: "This is the most far-reaching agree­ bill out of the Treasury of the United States. This ment ever entered into between capital and labor in this or appropriation is not payable out of any particular fund, any other country," 81 Cong. Rec, 6081,75'" Cong. 1" Sess. nor out of any money earmarked for that purpose." (June 21,1937); see also remarks of Sen. Wagner, id. at ld. at 6227. See also id. at 6303 (remarks of Rep. 6222. For further praise of the agreement, see rema rks of Jenkins ), Rep. Wolverton, id at 6085; remarks of Rep. Martin of In the House there was a mild reprise of the collo­ Colorado, id. at 6086; remarks of Rep. Mapes, id, at 6087; quy Senators Wagner, Robinson, Hastings, and Tydings remarks of Rep. Cole of Maryland, id. at 6088; remarks of had held in the Senate two years earlier. Representa- Rep. Mead, id. at 6089-90; remarks of Rep. Rayburn, id. CHARLES EVANS HUGHES 109

~~ 6092; remarks of Sen. Clark, id. at 6222-23. sought an injunction against collection of the tax ITom its III Ch. 347, 44 StaL 577 (1926). own State Belt Railroad. The Court appears to have been Texas & New Orleans Railroad Co. v. Brotherhood 0/ unsure exactly what the bill claimed. As Justice Brandeis Railwayalld Sleamship Clerks, 281 U.S. 548 (1930) (Jus­ put it, 'The bill asserts, apparently, that as a matter of statu­ tice McReynolds did not participate). See also virginian tory construction, the federal [retirement] system is not Railway Co. v. System Federalion, No. 40, 300 U.S. 515 applicable to the employees of the State Belt Railroad; and (1937) (unanimously upholding 1934 amendments to the apparently that if construed as applicable to them, the leg­ Act); WashinglOlI, Virginia & Maryland Coach Co. v. islation is unconstitutionaL" [d. at 257, The state's theory NLRB, 301 U.S. 142 (1937) (unanimously upholding ap­ was that application of the Carrier Taxing Act to the State plication of National Labor Relations Act to interstate bus Belt Railroad would constitute taxation of a state instru­ company); NLRB v. Jones & Laughlin Sleel Corp., 301 mentality in violation of the principle of in tergovem men­ U.S. I (1937) (upholding application ofNLRA to steel tal tax immunity. See Brief on Motion for Leave to File manufacturer); NLRB v. Fl1Iehau/Trailer Co., 301 U.S. Bill of Complaint, 6, 20-21; Motion for Leave to File and 49 (1937) (upholding application ofN'LRA to trailer manu­ Brief of Complainant State of California in Support of facturer); NLRB v. Friedman-Harry Marks ClOlhing Co., Motion for Leave to File Bill of Complaint, 5-20, 28-29, 301 U.S. 58 (1937) (upholding application ofNLRA to 44-45; Supplemental Brief of Complainant State of Cali­ clothing manufacturer); Associated Press v. NLRB, 30 I fornia on Defendants' Motion to Dismiss Bill of Complaint, U.S. 103 (1937) (upholding application ofNLRA to wire 10-18. In this last docwnent, filed after doubt was cast on service company). the intergovernmental immunity claim by the Court's de­ 112 Chairman Lea stated that "It is the belief of the com­ cision in Helvering v. Gerhard!, 304 U.S. 405 (1938), the mittee that this act, and particularly its substantial feattlfes, state also contended that the 1937 acts were generally un­ will be held constitutional should the Supreme Court be constitutionaL Id. at \8-21. The relief prayed for, how­ called upon for its decision." 81 Cong. Rec. 6081, 75 th ever, was not that the federal railroad retirement act legis­ Congo 1" Sess, (June 21,1937), See also id, at 6302 (Rep, lation be declared unconstitutional. It was instead more Doughton professes faith in constitutionality of Carrier modestly that it "be declared inapplicable to the State Belt Taxing Act and Railroad Retirement Act of 1937); id. at Railroad," 305 U.S. at 258, Because the Court dismissed 6090-91 (Rep. Jenkins professes belief in constitutional­ the bill as without equity, the opinion reached neither the ity of Railroad Retirement Act of 1937); id, at 6093 (Rep. statutory nor the constitutional issue. The state again sought Crosser professes faith in constitutionality of Railroad Re­ exemption from the Carrier Taxing Act under the principle tirement Act of 1937); id. at 6222 (Sen. Wagner expresses of intergovernmental immunity, again without success, in confidence in the constitutionality of the 1935 Acts and of Stale o/California v. Anglim, 37 F. Supp. 663 (N.D. CaL, the Railroad Retirement Act of 1937); id. at 6087 (Rep. 1941), aDd., Stale o/Calijornia v. Anglim, 129 F. 2d 455, Cole of Maryland professes faith in the constitutionality 459 (9th Cif., 1942), cerl. den., 3 17 U.S. 669 (1942). In of the 1935 Acts); id. at 6092 (Rep. Rayburn does the same); two cases lower courts held parties exempt ITom the Car­ (1, at 6093 (Rep. Crosser does the same). rier Taxing Act as a matter of statutory construction. See , fd. a16081. Ocean S.s. Co. o/Savannah v. Allen, 36 F. Supp. 851 (M.D. I14/d, at 6087. This was repeated several times on the floor. Ga., 1941), aj/d" 123 F. 2d 469 (5th Cir., 1941); New En­ Chairman Lea reported that "Ibe two great groups enter­ gland Freight Handling Co. HaSSell, 33 F. Supp. 610 ing into agreement resulting in this legislation have agreed (D, Mass" 1940), See Robert Stern, "The Conunerce Clause not to contest it" [d. at 6081. Rep, Wol verton reported and The National Economy, 1933-1946," 59 Harv. L. Rev. that "it has been agreed by each of the parties that they 645, 693 (1946) (reporting that the "validity" of the re­ will upon its enactment support and defend its provisions." ~~sed retirement program "has never been challenged"). Id. at 6085, In the Senate Wagner reported that "the rail­ See 45 U,S.c. 231 et seq.; 26 U,S.c. 3221 -3232. roads agreed with the representatives of the workers that 117 262 U.S. 447 (1923). if this measure were enacted they would not test its consti­ J1S Act of Nov. 23, 1921, c. 135,42 Stat. 224. tutionality, but accept it as law of the land." Id. at 6222. 119 262 U.s. at 487. For other Taft Court era cases rebuff­ See aL,o remarks of Sen, Wheeler, id. 6224-25 (suggest­ ing challenges to federal spending 011 the basis of Mellon's ing Ihata stockholder or small railroad might nevertheless taxpayer standing doctrine, see, e.g. Ellioil v. While, 23 F. bring a contest); remarks of Rep. Lea, id, at 608 I (hinting 2d 997 (1928) (rejecting petition for injunction to prohibit at the same). For fear that floor amendments would un­ appropriations for salaries for federal chaplains); Wheless ravel the deal between the railroads and the unions, the Mellon, 10 F. 2d 893 (1926) (rejecting suit to enjoin Senate deciSively rejected two amendments offered by enforcement of act providing for adjusted compensation Wheeler, See id at 6224-27. for war veterans). Rep. Mapes added: "It is further understood that 120 Edward S. Corwin, Twilight of the Supreme Court any suit or suits now pending in court to test the con­ 176 (1934). stitutionality of the existing railroad retirement law '" See Samuel 1. Konefsky, Chief Justice Stone and the will be withdra

(1938); Duke Power v. Greenwood County, 302 U.S. 485 welfare. In any event, the court held, citing Massachuseus (1938); California Water Serv v. Redding, 304 U.S. 252 v, Mellon, 262 U.S. 447 (1923), Frothingham's compan­ (1938); City ofAllegan Consumers ·PowerCo., 71 F. 2d ion case, "no personal right of any appellant is infringed," 477,480 (6th Cir., 1934), cert. denied, 293 U.S. 586 (1934); and even if the Act constituted an invasion of state power Central Illinois Pub. Servo Co. v. City ofBushnell, 109 F. "still only an abstract question of political constitutional 2d 26, 29 (7th Cir., 1940); Duke Power CO. V. Greenwood law would be presented, with which the courts are not con­ County, 91 F. 2d 665, 676 (4th Cir., 1937); Greenwood cerned." Jd. at 825. Counly V. Duke Power, 81 F. 2d 986, 997 (4th Cir., 1936); 130 Act of May 12, 1933, ch. 25, 48 Stat. 31. Arkansas-Mo. Power Co. v. City ofKennell, 78 F. 2d 911, '" Id., section 8( 1). 9 14 (8th Cir., 1935); Iowa S. Util. CO. V. Town ofLamoni, m Arthur M. Schlesinger, Jr., The Age of Roosevelt: The 11 F. Supp. 581,585 (S.D. Iowa, 1935); Missouri Power Coming of the New Deal 97 (1959). & Light CO. V. City of La Plata, 10 F. Supp. 653 (E.D. m In a 1932 campaign speech Roosevelt argued that any Mo., 1935); Missouri Utilities Co. v. City of California, farm plan "must finance itsel f. Agriculture has at no time 8 F. Supp. 454, 464 (W.O. Mo., 1934). See also Perkins sought and does not now seek any such access to the pub­ v. Lukens Steel Co., 310 U.S. 113, 125 (1940) (relying lic treasury as was provided by the futile and costly at­ on Mellon in denying standing to challenge determina­ tempts at price stabilization by the Federal Farm Board. It tion made under Public Contracts Act); Graff v. Town seeks only equality of opportunity with tariff-protected of Seward, 9 Alaska 205 (1937) (denying plaintiff industry." Raymond Moley, Tbe First New Deal 250 standing to challenge Public Works Administration). U,966). . Mellon s broader justiciability doctrine was also 135 Act of May 12, 1933, ch . 25, Sectlons 9, 12,48 Stat. 31 invoked by the lower courts in repulsing attacks on the United States v. Butler, 297 U.S. 1,57-61 (1936). The National Labor Relations Act, see Bethlehem Ship­ dissent did not take issue with the majority on the question building Corp. v. Nylander, 14 F. Supp. 201,207 (S.D. of standing. See 297 U.S. at 78 (Stone, J., dissenting). See Cal., 1936); Ohio Custom Garment Co. v. Lind, 13 F. ?,{soAlfange, supra note 121, at 184, 187-88. Supp. 533, 536 (S.D. Ohio, (936); the second Frazier­ 297 U.S. 1 (1936). Lemke Act, see In re Chilton, 16 F. Supp. 14,16 (D. 137 /d. at 68. Kelly and Harbison reported "a rumor given CoL, 1936); In re Paul, 13 F. Supp. 645, 647 (S.D. wide credence in Washington" that "asserted that Chief Iowa, 1936); the Emergency Relief Appropriation Act Justice Hughes had at first believed the statute constitu­ of 1935, see Barnidge V. United States, 10 I F. 2d 295, tional, but that he had ultimately voted with the majority 298 (8th Cir., 1939); the Securities and Exchange Com­ only because he thought another 5-to-4 decision would mission, see Detroit Edison Co. v, Securities & Ex­ seriously damage the Court's prestige." Alfred H. Kelly, change Commission, 119 F, 2d 730, 740 (6th CiL, et ai., Tbe American Constitution: Its Origins and De­ 1941); certain provisions of the amended Agricultural velopment 750 (4th ed. 1970). Harold Ickes' diary reveals Adjustment Act, see Wallace v. Ganley, 95 F. 2d 364, that Homer Cununings repeated this gossip at a Cabinet 366 (D.C. Cir., 1938); and the Tennessee Valley Authority, meeting in earty 1936. Ickes, supra note 46, at 535-36. see Frahn v. Tennessee Valley Authority, 41 F. Supp. 83, 138 Alfange, supra note 121, at 180-81. See F G. Vogt & 84,86 (N.D. Ala., 1941); Tennessee Valley Authority v. Sons, Inc v. ROlilensies, II F. Supp. 225, 226 (E.D. Pa., Ashwander, 78 F. 2d 578, 583 (5th Cir., 1935); see also iJ?35). Tennessee Electric Power Co. v. Tennessee Valley Author­ 49 Stat. 1148 (1936). ity, 306 U.S. 118, 137 (1939); Ashwander v, Tennessee '.0 See Swisher, supra note J 21, at 902; Frank B. Freidel, K~lIey Authority, 297 U.S. 288 (1936). Franklin D. Roosevelt: A Rendezvous Witb Destiny 234 12648 Stat. 22,23 (1933). (1990); Stern, supra note 115, at 689-90; Richard m 48 Stat. 257, 258 (1933). Kirkendall, "The New Deal and Agriculture," in Braeman, 12849 Stat. I , 4 (1935). Bremmer & Brody, eds., The New Deal: The National 49 Stat. 1363, 1364 (1936). Level 94 (1975). 141 129 49 Stat. 1597, 1608 (1936). As Carl Swisher put it, "Con­ 80 COIIg. Rec. 1778, 74\h Congo 2nd Sess. (Febmary gress... continued to make appropriations of this kind, 11,1936). largely inunune from judicial scrutiny." Swisher, supra note 142 See Note, "Soil Conservation and Domestic Allot­ 121 at 838-39. The Supreme Court and the lower federal ment Act," 24 Geo. L. J 962, 965-67 (1936). courts also rejected challenges to the Home Owners' Loan 143 Stem, supra note I [5, at 689-90. Arthur Schlesinger Corporation on standing grounds. See Kay v. United States, reports that Secretary of Agriculture Henry Wallace 303 U.S. 1 (1938). See also Pittman v. Home Owners 'Loan '

wpra note 132, at 82. '57 Murphy, supra note 164, at 169; EBR to LDB, Feb. 5, 145 52 Stat. 3 1 (1938). 1934; Beulah Amidon to EBR, Feb. 6,1934; AJ. Altmeyer '46 See Cushman, supra note 70, at 191-92, 196-97. to EBR, Feb. 9, 1934; EBR to LDB, Feb. 10, 1934; EBR to 297 U.S. at 63-64. LDB, Feb. 12,1934; EBR to LDB, Feb. 15, 1934 (Brandeis '" See ch. 86,42 Stat. 187 (1921) (amended by the ~wers, University of Louisville, microform). Grain Futures Act, ch. 369,42 Stat. 998 (1922» (codi­ Murphy, supra note 164, at 169-75; FDR to FF, June fied as amended at 7 U.S.C. section J -26 (1992». II, 1934, in Roosevelt lind F'rankfurter: Their Corre­ 148 259 U.S. 44 (1922). spondence, 1928-1945 122-23 (Max Freedman, annot. '49/d. at 66-68. 1968); Tom Corcoran and Ben Cohen to FF, June 18, 1934, 150/d. at 68-69. id. at 123-26. See also Schlesinger, supra note 132, at 301- l51 /d. at 69. 03, 305-06; Joseph P. Lash, Dealers and Dreamers 244- l\2 See Act of Aug. 15, 1921, ch. 64, 42 Stat. 159 45 (1988); William E. Leuchtenburg, J.'ranklin D. (1921) (current version at 7 U.S.C. section 181-229 ~~osevelt and the New Deal 130 (1963). \1992». 170 Murphy, supra !l0te 164, at 176-77. 51 See Stafford v. Wallace. 258 U.S. 495 (1922). ,7' Steward Machine Co. v. Davis, 301 U.S. 548 (1937). 154 See ch. 369, 42 Slat. 998 (I922) (amended by the Jd. at 591-92. Commodity Exchange Act, ch. 545 , 49 Stat. 1491 172 301 U.S. at 598 (McReynolds, J., dissenting); 30 I (1936» (codified as amended at 7 U.S.C. section 1-26 l(.,t al 616 (Butler, J., dissenting). \ 1992». /d. al 609 (Sutherland, J., dissenting). 55 262 U.S. I (1923). 174 See George Su therland 10 Richard R. Lyman, Jan. 156 82 Congo Rec. 341. 75" Cong. 2nd Sess. (1937). 2 1, 1938; George Sutherland to Mr. Preston (initials 151 1d. at 340-41, Po p ~ agreed with Senator McKellar unknown), Jan. IS, 1938; George Sutherland to Nicho­ that Congress ought to "make perfectly clear to the Court . las Murray Butler, Ja n. 12, 1938, Box 6, Sutherland . .w hat Congress had in mind by stating the purpose of the 71;"S, LC. bill on its face," predicting that every member would see Alsop & Catledge, supra note I, at 206; Pusey, the importance of the bill's legislative findings concern­ surra note I, at 760. ing the effect of unregulated agricultural marketing on in­ 17 "I agree that the payroll tax levied is an excise terstate commerce "when the Court comes to pass upon within the power of Congress; that the devotion of ~~f constitutionality of the pending measure." /d. at 34 1. not more than 90% of it to the credit of employers in /d. at 34!. states which require the payment of a similar tax under 159 307 U.S. 38 (1939). so-called unemployment-tax laws is not an unconsti­ 160 Brief for the United States at 110 (citations omitted). tutional use of the proceeds of Ihe federal tax; that the 161 U.S. at 47. provision making the adoption by the state of an unem­ Robert Jackson, The Struggle for Judicial Su­ ployment law of a specified character a condition prece­ premacy 238 (J 941). See also Swisher, supra note dent to the credit of the tax does not render the la w in­ 121, at 957; Comment, "Interstate Commerce-~Fed­ W,lid." 301 U.S. at 609-10 (Sutherland, J., dissenting). eral Regulation of Tobacco Marketing Held Constitu­ ld. at 613-14. tional," 52 liarI'. L. Rev. 1364 (1939). 118 30 I U.S. at 615-16 (Sutherland, J., dissenting). 163 273 U.S. 12 (1927). 179 Jd.; Helvering v. Davis, 30 1 U.S. 619 (1937). 164 Among them were NRA head General Hugh Johnson, 'So Carmichael v. Southern Coal & Coke Co., 301 U.S. NRA cOllnsel Donald Richberg, and Commissioner of 495 (1937). Statistics Isador Lubin. Bruce A. Murphy, The 18~ Id. at 527 (McReynolds, J., dissenting). Brandeis/l<'rnnkfurter Connection 167 (1982). 18, Id. 165 Also in attendance were presidential aide Tommy 183 ld. at 527-30. Corcoran, Senator Robert Wagner, and Charles 'M ld. at 530. Wyzanski, the talented young Labor Department So­ '" Jd. at 530-31. licitor who would ultimately defend the Social Security "6 ld. at 53 1. Act before the Court. ld. al 168. '87 Murphy, supra note 164, at 93-96. 166 See Murphy, supra note 164, at 165-69; see also '88 Wheeler, supra note I, at 329. Elizabeth Brandeis Raushenbllsh 10 LDB, Sept. 30, 189 Baker, supra note 84, at 49-50. 1933; EBR to LDB, Sept. 24, 1933; Lincoln Filene to ,.0 Peter H. Irons, Tbe New Deal Lawyers 248 LDB, Dec. 26, 1933; W. 1. Stoddard to LDB, Dec. 27, \ 1982). 1933; W. L. Stoddard to Lincoln Filene, Dec. 27, 1933; 91 Baker, supra no Ie 84, at 50 (citing The New York Times, Tom Corcoran 10 Paul Raushenbush, Jan. 26, 1934; July 6, 1935, at 2). Paul Raushenbush to Torn Corcoran, Jan. 26, 1934 ln ld. (Brandeis Papers, University of Louisville, microform). ,.) The New York Times, Jan. 7, 1937, p. I. Chief Justice Earl Warren: Super Chief in Action

Bernard Schwartz

Years after his Presidency, John Adams Vinson, no one expected the new ChiefJustice said, "My gift of John Marshall to the people to rank near Marshall himself in the judicial of the United States was the proudest act of my pantheon. Yet that is exactly what has life .. . . I have given to my country a Judge, happened. In his autobiography, Justice Wil­ equal to a Hale, a Holt, or a Mansfield."1 liam O. Douglas concluded, "Warren clearly Contrariwise, when former President Dwight ranked with John Marshall and Charles Evans D. Eisenhower was asked by his biographer, Hughes as our three greatest Chief Justices."5 Stephen E. Ambrose, what was his biggest Since Douglas wrote, Warren's stature has, if mistake, he replied heatedly, "The appoint­ anything, grown. In a 1997 book, I stated, ment of that S.O.B. Earl Warren."2 "Warren's leadership abilities and skill as a History, however, disagreed with the statesman enabled him to rank as second only Eisenhower estimate. Instead, the consensus to Marshall among our Chief Justices."6 is plainly with Vice President Hubert H. This reality was encapsulated by Justice Humphrey's assertion that, if President William 1. Brennan, who, after Warren retired, Eisenhower "had done nothing else other than began to call him the "Super Chief' a title soon appoint Warren Chief Justice, he would have adopted by those growing increasingly earned a very important place in the history of nostalgic about the Warren years. ''To those the United States."3 who served with him," Brennan wrote after During the 1953 Labor Day weekend when Warren's death, "Earl Warren will always be ChiefJustice Fred M. Vinson died of a massive the Super Chief. "7 heart attack, Earl Warren stayed up late Warren himself was proud of his reputa­ reading Beveridge's classic Life of John tion in this respect. After he retired, he Marshall.4 When, a month later, President delivered a talk to hundreds of students in the Eisenhower appointed Warren to succeed basement lounge of Notre Dame Law School EARL WARREN 113 and responded to questions. A witness sion investigating the Kennedy assassination, remembers: "One of our classmates prefaced even though President Lyndon B. Johnson his question with the observation that 'Some said that he had "begged" him,"14 the say that you'll go down in history with President persuaded Warren to change his Marshall as one of the two greatest Chief mind by appealing to Warren's patriotism: Justices . . .. ' The Chief Justice smiled broadly "Mr. Chief Justice, you were once in the army, and interrupted. 'Could you say that again--a weren't you? Well, as your Commander-in­ little louder, please? I'm having a little trouble Chief, I'm ordering you back into service." hearing! '''8 According to the just-published Johnson tapes, Warren then started crying and he said, Leadership Not Scholarship "I won't turn you down. I'll just do whatever you say."15 "You know," Warren later told his Irving Stone, the novelist, who had law clerk, "When someone appeals to my become then-Governor Warren's friend, tells patriotism that way, I don't know how I can say how he tried to introduce Warren to modem nO,"'!6 art. "What does this mean? Why hasn't this Certainly, Warren was anything but a got a head?" the Governor asked when shown learned legal scholar. "I wish thatI could speak examples. Finally, Warren said, "Irving, I don't to you in the words of a scholar," the Chief understand what this is all about. It is outside Justice once told an audience, "but it has not my training." Asked whether Warren got to fallen to my lot to be a scholar."17 know more about art as their friendship The work of a Chief Justice, however, ripened, Stone laughed and said, "I think he differs greatly from that of other members of left the subject alone."9 the Court as far as legal scholarship is David Halberstam has written a tribute to concerned. While considering the appoint­ Justice Brennan titled, 'The Common Man as ment of a successor to Chief Justice Vinson, Uncommon Man."lo The title can be applied President Eisenhower asked a member of equally to Earl Warren who was, in Anthony Governor Warren's staff whether Warren Lewis's phrase, "an ordinary man, a rather would really want to be on the Court after his simp Ie man. "II In most respects, Warren could years in high political office: "Wouldn't it be have been a character out of a Sinclair Lewis pretty rarified for him?" "Yes," came back the novel. Justice Potter Stewart once told me, answer, "I frankly think he'd be very likely to "Warren's great strength was his simple belief be bored to death [as an Associate Justice]." in the things we now laugh at: motherhood, the response went on: "My answer wou ld marriage, family, flag, and the like." These, be emphatically different if we were talking according to Stewart, were the "eternal, rather about the Chief Justiceship. He could run the bromidic, platitudes in which he sincerely place."IR believed." They were the foundation of The staff member's answer to the Warren's jurisprudence, as they were of his heart of the matter. The essential attribute of a way of life. When we add to this Warren's Chief Justice is not scholarship, but leader­ gruff masculine bonhomie, his love of sports ship. One who can "run the place" and induce and the outdoors, and his lack of intellectual the Justices to follow, will effectively head the interests or pretensions, we end up with a Court. typical representative of the Middle America "Warren had learned as an executive in of his day. Indeed, the most striking impres­ California to lead, to manage, to set a tone, and sion Warren gave "was what an old fashioned to get results."'9 As such, he brought more American figure he [was]."12ltis revealing that authority to the Chief Justiceship than had the Chief Justice's favorite poem was W.E. been seen for years. The most important work Henley's InvicluslJ-a poem that we now ofthe Supreme Court, of course, occurs behind consider a prime example of trite Victorian the scenes, particularly at the Conferences, sentimentalism. where the Justices discuss and vote on cases. After Warren refused to head the commis- In an interview with me, Justice Abe Fortas 114 1998 JOURNAL, Vol. I

summarized the Warren Conference forte: "It who had no judicial experience and very little was Warren's great gift that, in presenting the legal experience. "22 Alabama GovernorGeorge case and discussing the case, he proceeded Wallace asserted that Warren did not know immediately and very calmly and graciously to enough law "to try a chicken thief in my home the ultimate values involved-the ultimate county!"23 Such criticism, however, was constitutional values, the ultimate human misplaced. As his most recent biography puts values." In the face of such an approach, it, Warren "was better prepared as a practicing traditional legal arguments seemed inappropri­ attorney than many gave him credit for. "24 In ate, almost pettifoggery. To quote Fortas terms of legal practice, Warren had more again, "opposition based on the hemstitching experience than any member of his Court. As and embroidery of the law appeared petty in District Attorney of Alameda County, he had terms of Warren's basic value approach." headed one of the largest law offices in All the Justices who served with him California for thirteen years and then served as stressed Warren's ability to lead the Confer­ his state's highest legal officer for four more. ence. Justice Stewart well summarized the W an'etlWas the chief of the D .A. 's office in Warren role: "He was an instinctive leader fact as name. According to the office's whom you respected and as the presiding chief in "every major case in member of our conference, he was just ideal." Alameda County Earl Warren associated When I asked Stewart about claims that Justice himself in the trial. "25 Warren personally Hugo L. Black was the intellectualleaderofthe appeared in court in many cases. In fact, he Court, he replied, "lfBlack was the intellectual probably had more trial experience than most leader. Warren was the leader leader." Justices. As Warren put it in his memoirs, "As Justice Black, it should be noted, always district attorney, I had engaged in much considered himself the catalyst for the Warren litigation, both civil and criminal, and had Court jurisprudence. In 1968 he delivered a argued a case in the United States Supreme lecture that the media interpreted as criticism of Court."26 the ChiefJustice. When Black told Warren that The Chief Justice used to recall the time, on the press had distorted his statement, the Chief January 7, 1932, when District Attorney laughed and retorted, "Look, Hugo, you can't Warren argued before the highest Court in unring a bell."20 defense of Alameda County in a case brought A reading of the available Conference against it by the Central Pacific Railway.27 The notes of Justices on the Warren Court reveals argument happened to be the last heard by that, after an initial period of feeling his way, Justice Oliver Wendell Holmes, Jr. After the the Chief Justice was as strong a leader as the sitting that day, Holmes casually announced, Court has ever had. In almost all the important "f won't be down tomorrow," and he resigned cases, Warren himself led the discussion a few days later,"28 Warren said his friends toward the decision he favored. If any Court accused him ofdriving Holmes from the Bench can properly be identified by the name of They used to tease him, "one look at you and one of its members, his Court was emphati­ he said, 'I quit.' "29 cally the Warrcn Court and, without arrogance, he, as well as the country, knew it. Warren and Brown I In journalist Anthony Lewis's words, the Warren Court's "legal revolution could not Chief Justice Warren's leadership of the have taken place ... without Chief Justice Conference and the Court is shown most Warren."21 spectacularly in the Brown segregation case.30 A word should also be said on a I have already quoted Vice President widespread canard about Warren-that War­ Humphrey's assertion that, if President ren had had no practical experience as a lawyer. Eisenhower had done nothing else other than "We made a mistake," Senator Joseph R. appoint Warren, he would have earned an McCarthy once complained at a Senate important place in our history. If Earl Warren hearing, "in confirming as Chief Justice a man had done nothing else other than lead the EARL WARREN 115

as station), public accommodations, and when Earl Warren was Chief Justice, Felix Frankurter believed that four of his Stanley F. Reed, and Robert H. Jackson, in addition to Vinson) would have voted to uphold segregation.

Court to its unanimous Brown decision, he too vided that there were "equal but separate would have earned an important place in our accommodations for the white and colored history. races." The subsequent structure of racial We need not subscribe to Carlyle's hero discrimination was built on this "separate-but­ theory to recognize that outstanding judges equal" doctrine. do make agreat difference in the law. 31 It made Brown first came before the Court when a great difference that Earl Warren, rather than Chief Justice Vinson sat in its center chair. Fred M. Vinson, presided over the Court that When the Justices discussed the case on handed down the Brown decision. Brown December 13, 1952, Vinson stated that he was itself was the watershed constitutional case of not ready to overrule Plessy v. Ferguson. 34 A this century. Justice Stanley F. Reed, who May 17, 1954, Memorandum for the File In re participated in Brown, told his law clerk that "if Segregation Cases by Justice Douglas states, it was not the most important decision in the "Vinson was of the opinion that the Plessy history of the Court, it was very close."32 case was right and that segregation was When Brown struck down school segregation, constitutional." With the Chief Justice in favor it signaled the beginning of effective enforce­ of upholding segregation,35 the Vinson Court mentofcivil rights in American law. was far from ready to issue a ringing In Brown, black plaintiffs challenged the pronouncement of racial equality. Indeed, had constitutionality of segregated schools in four Vinson presided over the Court that decided states and the District of Columbia. Before Brown, the result would have been a sharply Brown, the Court had followed the rule laid divided decision. According to the Douglas down in Plessy v. Ferguson (1896),33 that Memorandum for the File, "In the original segregation was not unconstitutional, pro- conference there were only four who voted 116 1998 JOURNAL, Vol. I

that segregation in the public schools was ","",<'O>"VlI by first setting a com­ unconstitutional. Those four were Black, Conference tone than his Burton, Minton and myself. ... So the informal vote at the 1952 "A'1'~r""""'''' the cases were to be then would be five to four in favor of the constitutionality of segregation in schools." "I Justice Frankfurter's count was a bare don't see how in this and age we can set majority the other way. In aMay 20,1954, letter any group apart from the rest and say that they to Justice Reed, three days after the are not entitled to exactly the same treatment as unanimous Brown decision was announced, all others. To do so would be contrary to the Frankfurter wrotc, "I have no doubt that if the Thirteenth, Fourteenth, and Fifteenth Amend­ Segregation cases had reached decision last ments. They were intended to make the slaves Term there would have bcen four dissenters equal with ali others. Personally, I can't see Vinson, Reed, Jackson and Clark~and cer­ how today we can justify based tainly several opinions for the majority view. solely on race." That would have been catastrophic." As far as Plessy v. was The "catastrophe" was avoided when concerned, said Warren, "the more I've read Brown was set for reargument in the next Court and heard and thought, the more I've come to Tenn and, in the interim, Chief.Tustice Vinson conclude that the basis of and suddenly died. "This is the first indication that but equal' rests upon a of I have ever had that there is a God," Frankfurter the inherent inferiority of the colored race. I caustically remarked to two former law clerks don't see how Plessy and the cases following it when he heard of Vinson's death. 36 The Justice can be sustained on any other theory. Ifwe are was confirmed in his comment when Warren to sustain segregation, we also must do it upon was appointed as Vinson's successor. Under that basis." Warren then asserted that, "if the the new Chief Justice, the Court was able to argument proved anything, it proved that that issue its landmark ruling striking down basis was not justified." segregation and to do so unanimously, The Chief Justice's Conference presenta­ without a single concurring or dissenting tion was a masterly illustration of the Warren voice to detract from the decision. method of leading the Conference. It put the Both the decision and the unanimity were proponents of Plessy in the awkward position attributable directly to Chief Justice Warren's of appearing to subscribe to racist doctrine. leadership. A few days before the Brown Justice Reed, who spoke most strongly in decision was announced, Justice Harold H. favor of Plessy, felt compelled to assert that be Burton wrote in his diary, "it looks like a was not making "the argument that the Negro unanimous opinion-a major accomplishment is an inferior race. Of course there is no inferior for his [Warren'sjleadership. And, just after race, though they may be handicapped by lack the Brown opinion was read, Burton wrote to of opportunity." Reed did not, however, Warren, "To you goes the credit for the suggest any other ground on which the Court character of the opinions which produced the might to justify segregation now. all important unanimity. Even a critic of my When the Conference was finished, it Brown interpretation-what he calls "the appeared that Chief Justice Warren had six firm standard version"38~agrees that that ver­ votes for his view that segregation should be sion "does capture most of \Varren's ruled invalid.4l Two Justices, Robert H. contribution to Brown" and that "in the end Jackson and Tom C. Clark, indicated that they what mattered . .. was indeed Warren's ability would vote the same way if an opinion could to accommodate the conflicting views of his be written to satisfy them. Only Justice Reed co !leagues. "39 still supported the Plessy doctrine. The new Chief Justice led the Court to its The Chief .Tustice now devoted all his EARL WARREN 117

Linda Brown, now Mrs. Charles O. Smith, was photographed in 1975 with her two children, Charles and Kimberly. Twenty-four years earlier, Linda's father, Oliver Brown, had sued the city of Topeka, Kansas, because his daughter had to cross railroad yards to catch the bus for a black sc hool. enty-one blocks yay when there as a white school only five blocks from home. efforts to eliminate the danger of dissenting with Reed. "42 and concurring opinions. During the months Despite the Chief Justice's efforts, there that followed, he met constantly with his are indications that Justice Reed persisted in colleagues on the case, most often talking to voting to uphold segregation for months. He them informally in their Chambers. That was actually started to prepare a draft dissent,4J By the way he had been able to accomplish things then, however, the Justice stood alone and back in California. The result in Brown showed Warren continued to work on him to change that he had not lost any of his persuasive his vote, both at luncheon meetings and in powers in the Marble Palace. In particular, as private sessions. Then, the Chief Justice put it Justice Reed's biographer puts it, Warren to Reed directly; "Stan, you're all by yourself "engage[d] in a number of low-key but in this now. You've got to decide whether it's effective conversations regarding the cases really the best thing for the country." As 118 1998 JOURNAL, Vol. I described by Reed's law clerk, who was straightforward. The draft was based on the present at the meeting, "Throughout the Chief two things he later stressed to the clerk Justice was quite low-key and very sensitive to primarily responsible for helping on the Brown the problems that the decision would present opinion: the opinion should be as brief as to the South. He empathized with Justice possible, and it was to be written in Reed's concern. But he was quite firm on the understandable English, avoiding legalisms. Court's need for unanimity on a matter of this The Chief Justice told the clerk he wanted an sensitivity. " opinion that could be understood by the Ultimately, Justice Reed agreed to layman. unanimous decision. most wrote to Justice

strike down segregation, it was agreed that the children: "To separate opinion should be written by the Chief Justice. of their age in school solely Toward the end of April, after he had secured because of their color puts the mark of Justice Reed's vote, Warren was ready to inferiority not only upon their status in the begin the drafting process. On April 20, community but also upon their little hearts and Justice Burton wrote in his diary, "After minds in a form that is unlikely ever to be lunch the Chief Justice and [I] took a walk erased." around the Capitol then went to his Concern with the impact of segregation on chambers where he uttered his preliminary the "hearts and minds" of black children was thoughts as to author segregation cases." typical of the Warren approach. In the case of Soon thereafter Warren went to work on the segregation, this view had roots in Warren's Brown draft opinion. contact with Edgar Patterson, his black driver ChiefJustice Warren's normal practice was while he was Governor ofCalifornia. Patterson to leave the actual drafting of opinions to his later recalled how he used to talk to the law clerks. He would only outline the way he Governor about his early years. Warren would wanted the opinion drafted and would rarely ask, "Tell me about how you felt when you go into particulars on the details involved in were a little kid, going to school. And then I the case. That was for the clerk drafting the used to tell him about some of the things that opinion, who was left with a great deal of happened in New Orleans, the way black kids discretion, particularly on the reasoning and felt." Patterson thought that the Brown research supporting the decision. It has been opinion "almost quoted the ideas that he and I assumed that this procedure was also followed used to talk about on feelings ... things that he in the Brown drafting process. However, there picked up as he was asking questions about is a draft opinion in Warren's papers in the how the black man felt, how the black kid felt." Library of Congress that shows that it was the Just before Warren's death, Patterson visited Chief Justice himself who wrote the Brown him in Georgetown University Hospital and draft. Headed simply "Memorandum" and told him his Brown decision "seemed to be undated, it is in Warren's handwriting, in based on our discussion of my early school life pencil, on nine yellow legal-size pages. in New Orleans." Warren laughed and Chief Justice Warren's Brown draft« was indicated that many other factors had entered written in the typical Warren style: short, into the decision. nontechnical, well within the grasp of the In addition, the Warren draft stressed the average reader; the language is direct and changed role of education in modem society, EARL WARREN 119 as contrasted with the situation when the Brown Enforcement Fourteenth Amendment was adopted: "No child can reasonably be expected to succeed in There is an undated note, written on a life today ifhe is deprived of the opportunity of Supreme Court memo pad in Justice an education. It also posed the crucial Frankfurter's handwriting, that reads, "It is not question presented to the Court: "Does fair to say that the South has always denied segregation of school children solely on the Negroes 'this constitutional right.' It was NOT basis of color, even though the physical a constitutional right till May 17/54." facilities may be equal, deprive the minority The change in Justice Frankfurter's pos­ group of equal opportunities in the educa­ ture on segregation was explained by him tional system?"-as well as its answer: "We during a 1960 Conference. "During the believe that it does." Conference," states a January 25, 1960, The Warren memorandum transmitting the handwritten note by Justice Douglas in his Brown draft to the Justices declared, "On the papers in the Library of Congress, "Frankfurter question of segregation in education, this ... said if the cases had been brought up should be the end of the line." If that was true, [before Brown] he would have voted that it was mainly the Chief Justice's segregation in the schools was constitutional even than commentators on Brown have because 'public opinion had not then realized. The Brown draft shows that the Chief crystallized against it.' He said the arrival of the Justice was primarily responsible not only for Eisenhower Court heralded a change in public the unanimous decision, but also for the opinion on this subject and therefore enabled opinion in the case. This was one case where him to vote against segregation. Bill Brennan's the drafting was not delegated. The opinion response was 'God Almighty.' delivered was essentially the opinion pro­ The May 17, 1954,Brownopiniondeclared duced when Warren himself sat down and put the right to ban segregation, but it made no pencil to paper. provision for enforcement of the new right. The final Brown draft was circulated on Instead, Chief Justice Warren's opinion May 13, 1954, in form. The next day, concluded by announcing that the Court was a Conference day. At scheduling further argument on the question entertained by Justice of appropriate relief. The situation was salmon provided by summarized in The New York Times account of Douglas McKay. Just the Brown decision: "when it returns in in his diary, the October for the 1954-1955 term [the Court] Segregation will hear rearguments then on the question of i""Rtrtli'ti'~nR for delivery Mon­ how and when the practice it outlawed today to office may finally be ended,"45 The theme for the second Brown decision and opinion was set by Chief Justice Warren himself at the Conference that met on Saturday, April 16, 1955, following the oral reargument on the terms of the decree earlier in the week. Warren's presentation opening the " A few days Conference stated the main lines of what g the opinion, became the Court's enforcement decision. 'if First, the Chief Justice rejected various 1',IVI",rii,rnilv safely to proposals that had been discussed in the no less in the Court: appointment of a master to work out the history of the Nation than in that of the Court. terms of an enforcement decree, fixing ofa date You have, if I may say so, been wisely at the for completion of desegregation, requiring hclm throughout this year's journey of this specific dcsegregation plans from defendant litigation. Finis coronal omnia." school districts, and imposing of procedural 120 1998 JOURNAL, Vol. I

requirements~all of which were also rejected agreed that the unanimous opinion should be by the Court's decision. Then he emphasized written by the Chief Justice. Warren stressed that the Court should furnish guidance to the to his clerks that the opinion should be as lower courts: "the opinion ought to give them short as possible and cover the main points he some guidance. It would make it much easier had made at the Conference: that enforcement and would be rather cruel to shift it back to be flexible, under accepted equity principles, them and let them flounder." The guidance and that it take into account various factors to should be in an opinion listing the factors to be be briefly listed to serve as "ground rules" for taken into account, rather than a formal decree: the lower courts. HI think there should be an opinion with factors As was true in Brown I, the drafting of the for the courts below to take into account rather Brown J/ opinion was by the Chief Justice than a formal decree." The opinion-not-decree himself. In May 1955, Warren once more put approach had the advantage of pencil to paper and produced a draft opinion. flexibility. Flexibility in enforcement was also The original is again in pencil in the Chief the keynote ofthe "ground rules" Chief Justi ce Justice's handwriting on six yellow legal-size Warren suggested to guide the enforcement pages and headed "Memo."46 As was true of process. Warren's Brown I draft, this Brown Il draft is Once again, the Warren presentation set similar to the final Brown Il opinion the theme both for the Conference and the and contains most of the latter's language. The most noted

Although President Eisenhower and Chief Justice Warren were all smiles at this White House meeting in 1957, Eisenhower would later describe his appointment of Warren as "the biggest damn fool thing I ever did." From left to right, flanking the President and the Chief Justice, are Associate Justices William O. Douglas, Felix Frankfurter, William J. Brennan, Tom C. Clark, J ohn Marsball Harlan, Charles Whittaker, Harold H. Burton, and Stanley F. Reed. EARL WARREN 121

Brown II opmion was made at Justice think that 'with all deliberate speed' ... is Frankfurter's urging. The Chief Justice had preferable to 'at the earliest practicable date.'" closed his original draft: "The judgments ofthe Chief Justice Warren did not make the Courts of Appea! are accordingly reversed change in his circulated draft. So Justice (except Delaware) and the causes are re­ Frankfurtcr sent him a May 27 letter repeating manded to the District Courts to take such the suggestion: "I still strongly believe that proceedings and enter such orders and 'with all deliberate speed' conveys more decrees consistent with this opinion as are effectively the process of time for the necessary and proper to admit and effectuation of our decision ... . I think it is those similarly situated in their respective highly desirable to educate public opinion­ schoo! districts to the public school system on the parties themselves and the general a non-discriminatory basis at the earliest public-to an understanding that we are at the practicable date." beginning of a process of enforcement and not In the final Brown II opinion, this was concluding it. In short, I think it is far better to changed to: ''The judgments below, except habituate the public's mind to the realization of that in the Delaware case, are accordingly this, as ... the phrase 'with all deliberate speed' reversed and the cases are remanded to the .. . [is] calculated to do." District Courts to take such proceedings and Chief Justice Warren did, of course, finally enter such orders and decrees consistent with accept the Frankfurter suggestion and the "all this opinion as are necessary and proper to deliberate speed" phrase remains the most admit to public schools on a racially striking one in the Brown If opinion. More nondiscriminatory basis with all deliberate important, was the two-edged nature of the speed the parties to these cases." phrase. It ensured flexibility by providing time When the Brown II opinion declared that for enforcement; but it also countenanced the lower courts were to ensure that blacks delay in vindicating constitutional rights. "All were admitted to schools on a nondiscrimina­ deliberate speed" may never have been tory basis "with all deliberate speed," it led to intended to mean indefinite delay. Yet that is learned controversy on the origins of the just what it did mean in much of the South. oxymoronic phrase-itself so un typical of the Some of the Justices, including the Chief normal Warren mode of expression. The Justice, later indicated that it had been a phrase itself comes from Justice HolmesY mistake to qualify desegregation enforcement However, we remain uncertain where Holmes by the "all deliberate speed" language. Justice obtained the phrase. What is certain, neverthe­ Black's son quotes him as saying, "It tells the less, is that Justice Frankfurter got it from enemies of the decision that for the present the Holmes and the Brown II opinion got it from status quo will do and them time to Frankfurter. Commentators on Brown II have contrive devices to stall off desegregation."48 all assumed that this was the case; but they This Black statement is inconsistent with what have had to support the assumption only by he said at the Brown enforcement Conference. circumstantial evidence. However, two letters The Alabama Justice then had indicated that by Justice Frankfurter to the Chief Justice the Court should not try to settle the enable us to confirm definitely that the Justice issue too rapidly. Ifit attempted to was responsible for the "all deliberate speed" do so, Black told the conference, its decree language. "would be like Prohibition." Black, in fact, was These letters show that Chief Justice the one Justice who predicted at the Warren had discussed the opinion with Justice Conference that the movement toward deseg­ Frankfurter even before his draft opinion was regation in the South would at best be only circulated and the Justice had then suggested "glaciaL" the Holmes phrase. On May 24, 1955, The Chief Justice, too, came to believe, that Frankfurter wrote to Warren that he had read it had been a mistake to accept the "all the draft "and I am ready to sign on the deliberate speed" language. In his later years Undotted line." But Frankfurter went on, "I still Warren concluded that he had been sold a bill 122 1998 JOURNAL, Vol. I

of goods when Justice Frankfurter induced him to the apportionment of the Alabama legisla­ to use the phrase. It would have been better, he ture. The apportionment issue had arisen two later said, to have ordered desegregation years earlier in Baker v. Carr,52 which had forthwith. By then, however, Justice Black's decided that the Court had jurisdiction over prediction of the "glacial" pacc of desegrega­ cases challenging legislative apportionments, tion had proved, if anything, overoptimistic. though they had until then been held to The Justices had, to be sure, not expected involve only "political questions" beyond enthusiastic compliance by the South. But the judicial competence. Several of the Justices, extent of opposition was something that had including Chief Justice Warren, had also not been foreseen. Looking back, Warren, at wanted to decide the merits in Baker v. Carr least, felt that much of the defiance of Brown and apply a standard of equality of population could have been avoided if the South had not to legislative apportionments. They were not, been led to believe that "deliberate speed" however, willing to apply it to more than one would countenance indefinite delay. When a House. comparable problem arose in 1964 in connec­ The Chief Justice, in particular, was tion with enforcement of the "one person-one influenced by his experience in California, vote"principle in legislative apportionments,49 when only the Assembly was apportioned by the Chief Justice did not hesitate to urge population. Each California county was immediate enforcement, regardless of the represented by one state senator, regardless of problems in individual states in adapting to the population. In his memoirs, Warren called this new rules. the "Federal System of Representation" Except in the Brown case, in fact, Chief because of its resemblance to that in the Justice Warren never let the question of United States Constitution.53 Warren had enforcement affect his decisions. He always believed that the system worked fairly and he felt that the Justices' duty was only to decide thought that the equal-population requirement the cases before them as they thought the should not extend to similar state senates. Constitution required. Warren's Court career The same belief was expressed during the was the living example of the old maxim: Fiat conference discussions that followed the justitia et ruant coeli (Let justice be done argument in November 1963 of Reynolds v. though the heavens should fall). Sims. Led by the Chief Justice, most of the But he did not expect the heavens to fall. Justices quickly decided that the lower House Once, after the Court had ordered the release of apportionments, which were not based on an Army prisoner, one of his law clerks asked equality of population, were invalid. But him how they were going to make the Army do neither Warren nor the others were willing to that. The Chief Justice just laughed and said, apply the popUlation standard to both Houses "Don't worry about it. They will do it." The of the state legislature. clerk persisted and referred to the Andrew That a majority of Justices changed their Jackson statement about John Marshall minds was a direct result of Chief Justice having to enforce his own decision. Warren's lead: The Chief Justice had assigned "Look," Warren said in reply, "you don't the Reynolds opinion to himself at the have to worry. If they don't do this, they've November 22, 1963, Conference-the Confer­ destroyed the whole republic, and they aren't ence at which the Justices received word of going to do that So you don' t even have to President John F. Kennedy's assassination. worry about whether they are going to do it or As Warren started to work out his reasoning, not-they're going to do it!"50 he came to realize that his California experience should not be determinative. Instead, he Leadersbip and Reapportionment concluded that the equal-population standard must apply to both Houses of a state The 1964 case in which the one-person­ legislature. one-vote principle was laid down was After the Chief Justice had concluded that Reynolds v. Sims. 51 It arose out of challenges Reynolds v. Sims had to be decided by an EARL WARREN 123 equal-population standard applicable to both 'The Chief used to say that if Reynolds v. Sims Houses, he was talking to the law clerk working had been decided before 1954, Brown v. Board on the case. He began to laugh and remarked, of Education would have been unneces­ "You know I gave a speech some years ago in sary."56 California supporting our reapportionment The Chief Justiee was well aware that system there." He said it was based on the Reynolds v. Sims was the political death federal principle that the Court was rejecting. warrant for undetermined numbers of rural "You know," he went on, "I never really legislators, whose seats would now be thought very much about it then. As a political reapportioned out of existence. Soon after the matter it seemed to me to be a sensible decision, Warren flew to his home state of arrangement. But now, as a constitutional California to hunt with some old friends. One of matter, with the point of view of the them was asked to invite the Chief Justice to go responsibilities of a Justice, I kind of got to with some state senators on a trip to hunt quail. look at it differently." The Chief Justice was When Warren was asked ifhe wanted to drive not at all troubled by the fact that he had taken down and join them, he looked incredulous. an entirely different position as Governor. "I "All those senators?" he inquired in mock was just wrong as Governor," Warren later told horror. "With another law clerk. 54 Even though Warren's Reynolds v. Sims Criminal Law Cases opinion was more far-reaching than the Conference discussion, it was quickly ac­ Justice Douglas tells us in his autobiogra­ cepted by a majority. That result was due phy'S that when Warren E. Burger succeeded entirely to Warren's leadership. It was Warren Warren as Chief Justice, he told the Confer­ alone who decided that the Conference ence that the Court should overrule a number consensus was wrong, and that the equal­ of Warren Court decisions-particularly those population standard had to govern all state in the Gideon and Miranda cases. 59 These legislative apportionments. The Chief Justice were the two most famous criminal-law cases also personally persuaded the Justices who decided by the Warren Court. They will be joined his opinion that the federal analogy dealt with in reverse order in our discussion of should not be followed. Had Warren not the leadership role of Chief Justice Warren in changed his mind and convinced the others those decisions. that his new position was correct, the law on Writing in The New York Times in 1965, the subject would be entirely different. Anthony Lewis pointed out that the difficulty Chief Justice Warren never had doubts of the Court's work was insufficiently about the reapportionment decision. He appreciated by either the Court's critics or its maintained that, if the "one person, one vote" admirers. When the Court reversed a convic­ principle had been laid down years earlier, tion, the decision was judged only in terms of many of the nation's legal sores would never the "poor downtrodden defendant" or the have festered. "If [the principle] had been in '''vicious criminal threatening our peace." existence fifty years ago," he later insisted, Yet the criminal cases that come to the "we would have saved ourselves acute racial Court can rarely be dealt with in light of the troubles. Many of our problems would have individual attitude toward the particular been solved a long time ago if everyone had defendant. Lewis illustrated the point by the right to vote, and his vote counted the referring to "a typical criminal case that comes same as everybody else's. Most of these before the Court these days. A suspect has problems could have been solved through the been arrested and brought to a local police political process rather than through the station; he asks to see a lawyer, and the police courts. But as it was, the Court had to say no; after questioning by a relay of officers decide."5) Indeed, John Hart Ely, a former he confesses. Should the confession be Warren law clerk who is now a leading admissible as evidence--or excluded because constitutional scholar, wrote in a book in 1996, it resulted from the denial of counsel?" The 124 1998 JOURNAL, Vol. I

Sixth Amendment guarantees the right to been arrested and taken to an interrogation counsel in "all criminal prosecutions." But, as room, where he was questioned without being Lewis noted, "the Constitution does not advised that he had a right to have an attorney answer the critical question: When does the present. After two hours, the police secured a right to counsel begin?"60 confession that was admitted into evidence Though Lewis published his article almost over Miranda's objection. The state supreme a year before Miranda v. Arizona,6 1 his court affirmed the conviction. illustrative case presented the very question The Chief Justice's questions and com­ posed in Miranda. The answer given made ments during the Miranda argument foreshad­ that case one of the most controversial in the owed the decision. One of the points for the Warren Court. Court to decide was when the proceeding Miranda itself came to the Court as a result "focused" on the defendant for purposes of of the Chief Justice's initiative. He instructed his Fifth and Sixth Amendment rights­ his law clerks that year to be on the lookout for whether at the stage of police interrogation or a case raising the Miranda issue, saying, "I only when an accusation was made. To think we are going to end up taking [such a] Warren, the accusatory stage was reached case this year."62 Miranda had been convicted with Miranda's arrest. "I didn't know," he of kidnapping and rape in Arizona. He had commented during the argument, "that we

Chief Justice Warren was keenly interested in methods of arrest, questioning of suspects, and police conduct, because he had been intimately familiar with them when he was doing the prosecuting years earlier as district attorney in Alameda County, California. His excellent public record as a prosecutor helped propel him into politics. Above, Governor Warren is celebrating the election returns with his family in his successful bid to become attorney general of California in 1938. From left to right are Mrs. Warren, Dorothy, Virginia, Governor Warren, Earl, Jr., Nina, Elizabeth, and Bobby. EARL WARREN 125 could arrest people in this country for said to me, "the statement that the F.B.I. did it investigation. Wouldn't you say it was ... was a swing factor. I believe that was a accusatory when a man was locked in jail?" tremendously important factor, perhaps the The ChiefJustice also indicated that Miranda's critical factor in the Miranda vote." right to consult counsel was not affected by The Miranda majority agreed on the whether or not he could pay for a lawyer. Warren approach to the case after the Chief "When does the right to counsel attach?" Justice explained his reasoning in his draft Warren asked, "Does inability to hi re mean opinion. Above all, he persuaded others to less generous treatment by the law?" accept what amounted to a code of police Last of all, the Chief Justice stressed the procedure governing interrogation of sus­ failure to advise Miranda of his rights-a focal pects. Even The New Yo rk Times thought that point of the Miranda opinion. When counsel the Warren opinion went too far in this respect, argued that the test was one of voluntariness saying that the listing of procedures was an of the confession, Warren came back, "over-hasty trespass into the legislative "Wouldn't the best test be simply that the area."64 Chief Justice Warren himself had no authorities must warn him?" Then the doubts in the matter and, relying on his years defendant could intelligently decide if he as a criminal prosecutor as well as the F.B.L wanted to talk without counsel. "Do you experience, persuaded a majority to agree to agree," Warren asked, "that if a man says I his far-reaching opinion. The opinion of the would like to talk to a lawyer, the police should Court that the Chief Justice delivered in not interrogate?"6) Miranda was essentially the same as the draft Justice Fortas, who had been on the that he had originally circulated. Miranda Court, told me that the Miranda In a memorandum at the time, Justice decision "was entirely his"-i.e., Warren's. Brennan declared that the Miranda opinion The Chief Justice's leadership led the Justices "will be one of the most important opinions of both to their decision in the case and to the our time." Miranda also turned out to be the setting out of what the opinion called most controversial of the Warren Court's "concrete constitutional guidelines" for police criminal-law decisions, and gave rise to interrogation. anguished complaints from law-enforcement At the Miranda Conference, Chief Justice officers throughout the country. They de­ Warren left no doubt where he stood. As at the nounced Miranda for putting, as Mayor Sam argument, the Chief Justice stressed that no W. Yorty of Los Angeles said, "another set of warning had been given by the police. In such handcuffs on the police department."65 a case, the police must warn someone like Miranda was condemned on Capitol Hill and Miranda of his right to silence, that anything became a major issue in Richard M. Nixon's he said could be used against him, that he presidential campaign. could have a lawyer, and that he could have On the other hand, Miranda, as much as counsel appointed if he could not afford one. anything, exemplified Chief Justice Warren's The Chief Justice told the Conference that basic approach. Every so often in criminal such warnings had been given by his staff cases, when counsel defending convictions when he had been a district attorney. He would cite legal precedents, Warren would placed a particular emphasis upon the practice bend his bulk over the Bench to ask, "Yes, yes followed by the Federal Bureau of Investiga­ -but were you fair?"66 The fa irness to which tion and explained how it worked. The the Chief Justice referred was no jurispruden­ "standard" F.B.I. warning covered the essen­ tial abstraction. It related to such things as tial requirements Warren had posited. The methods of arrest, questioning of suspects, Chief Justice told the Conference that the police conduct, and the li ke-matters that F.B.L's record of law enforcement showed that Warren still understood as intimately as when requiring similar warnings in all police he himself was doing the prosecuting years interrogations would not impose too great a earlier as district attorney in Alameda County, burden. Justice Brennan, who was present, California. The Miranda decision was the 126 1998 JOURNAL, Vol. I ultimate embodiment of the Warren fairness Warren persuaded Brennan neither to circulate approach. Miranda also illustrates another nor issue the concurrence and only the Chief aspect of the Warren leadership. The strong Justice's opinion of the Court was issued for dissents there Jed Justice Brennan to draft a the Miranda majority. short concurrence emphasizing that the Court During the Miranda arguments Chief had not been as extreme "as the dissents Justice Warren stated that "this [case] is not i>Ul';J<,"'''.'' Brennan showed his draft to the much different from Gideon." He was referring Chief Justice before circulating it. Warren to Gideon v. Wainwright,6? the Warren Court's expressed concern at the prospect of a landmark 1963 case on the right to counsel. separate opinion by a member ofthe majority. The book published the next year by Anthony Though Brennan explained that the concur­ Lewis, Gideon's Trumpet, and the movie rence was being issued solely to emphasize the based on it have made Clarence Gideon and his Court's decision, the Chief Justice was not case a part of American folklore. But few mollified. If he had a lodestar principle for people realize that the Gideon decision important cases, it was that the opinion of the resulted directly from Warren's leadership. Court should speak with one voice. In the end, For years, Warren had felt, as he said in a 1954

The 1963 right-to-counsel case of Clarence Gideon is now part of American folklore thanks to Anthony Lewis's book, Gideon;y Trumpet, and the movie that followed. At left is the handwritten petition Gideon filed witb tbe Su­ preme Court for certiorari. In it he claimed not to have been given due process when be was denied counsel to defend himself on a charge of breaking and entering a poolrom witb intent to commit a crime-a felony under Florida law. Wbat many wbo know tbe story of Gideon's personal crusade do not realize, bowever, is tbat not long before the petition was filed, Cbief Justice Warren's Jaw clerks were given these instructions by one of the previous Term's clerks: "Keep your eyes peeled for a rigbt to counsel case. The Cbief feels strongly that the Constitution requires a lawyer." EARL WARREN 127 speech to the American Bar Association, "that noted, the Warren law clerks had been no man accused of a serious offense is capable instructed to find in the mass of petitions just of representing himself."68 Not long before such a right-to-counsel case. The second was Gideon's petition was filed, the Chief Justice's that, in their discussions on Carnley v. law clerks had been instructed by one of the Cochran,73 a case then pending, the Justices prior Term's clerks, "Keep your eyes peeled had come close to overruling Betts v. Brady. for a right to counsel case. The Chief feels However, before Carnley was decided, Justice strongly that the Constitution requires a Whittaker resigned and Justice Frankfurter lawyer. "69 became incapacitated by a stroke. This gave Gideon had been convicted in a Florida the Chief Justice, who was in favor of court of breaking and entering a poolroom with discarding the Betts v. Brady rule, the votes for intent to commit a crime-a felony under a four-to-three decision overruling Betts. Florida law. The trial judge refused Gideon's Warren decided, nevertheless, that it would be request for counsel, and he had to conduct his unwise to overrule an important precedent by a own defense. The highest Florida court bare majority of only a seven-Justice Court. aff1rmed. Gideon then sent a petition to the The case was assigned to Justice Brennan, Supreme Court for certiorari. The petition was who drafted an opinion ofthe Court reversing laboriously scrawled in pencil in schoolboy­ Carnley's conviction within the Betts v. Brady type printing. Gideon's papers arrived at the rule. It was after this that Chief Justice Warren Court January 8, 1962-{)ne of nine in forma told his clerks to look for a right-to-counsel pauperis petitions in that morning's mail. case that would give the Court an opportunity Gideon's petition claimed that he had been to overrule Betts v. Brady. denied due process: "When at the time of the Carnley and the Warren instructions made petitioners trial he ask the lower court for the the Gideon case the proverbial needle in the in aid of counsel, the court refused this aid. forma pauperis haystack. The Chief Justice's Petitioner told the court that this Court made law clerks had the special duty of scrutinizing decision to the effect that all citizens tried for a the I.F.P. applications and preparing a felony crime should have aid of counsel. The memorandum (then called a "flimsy," from the lower court ignored this plea." At the trial, thin carbon copy sent to each Justice). When when the court had denied his request for the Warren clerk who prepared the flimsy appointed counsel, Gideon had asserted, "The considered the case worthy of consideration, United States Supreme Court says I am entitled he attached the red envelope containing the to be represented by counsel."70 original petition to his memo. This was done in Gideon was, to be sure, wrong in his Gideon's case and served as a red flag that this assertion. The leading case then was Betts v. was a right-to-counsel case that might serve as Brady, 71 where the Court had held in 1942 that a vehicle for overruling Betts v. Brady. an indigent defendant did not have a due At Chief Justice Warren's urging, the process right to appointed counsel in a Gideon certiorari Conference voted to grant noncapital case unless he could show that, the writ, with only Justice Tom Clark for denial. under the special circumstances of his case, he Even the normally conservative Justice John could not obtain a "fair trial" without a lawyer. Marshall Harlan had written at the end of his Gideon's petition did not claim any such clerk's certiorari memo, "YES, I think the time "special circumstances" and, as Lewis charac­ has come we should meet the Betts question terized it in his book, the petition was not the head-on." The order granting certiorari stated type that evoked that rare comment in the that counsel were requested to discuss the Clerk's office, where the petitions were sorted, question, "Should this Court's holding in Betts "Here's one that I'll bet will be granted." On v. Brady . .. be reconsidered?" the contrary, wrote Lewis, "In the Clerk's Gideon then sent another penciled peti­ Office it had no ring of history to i1."72 tion: "I do desire the Court to appoint a But Lewis and other Court watchers were competent attorney to represent me in this unaware of two crucial facts. One was that, as Court." At the last Conference of the 196 1 128 1998 JOURNAL, Vol. I

Tenn, Chief Justice Warren suggested that decision was announced for a unanimous Abe Fortas, soon to be appointed to the COUlt Court on March 18. himself, should be assigned to represent To one interested in how an effective Chief Gideon. The Justices all concurred. The Court Justice operates, the Gideon case is a good Clerk put in a call to Fortas, locating him in illustration of the Warren fairness in assigning DaJ las, and Fortas said he would be happy to opinions. He did not take the "big" cases for serve. himself, except where, as in the Brown "If an obscure convict named Clarence Earl segregation case, he thought it was important Gideon," declared Attorney General Robert F. that the COUlt speak through the Chief Justice, Kennedy in a speech after the Supreme Court or, as in Reynolds v. Sims or Miranda v. decision, "had not sat down in his prison cell Arizona, he wanted to bear the brunt of the with a pencil and paper to write a letter to the expected criticism. The Justices all received Supreme Court the vast machinery of their share of the important opinions, though American law would have gone on function­ he naturally gave more of them to those who ing undisturbed. But Gideon did write that were his JUppOlters and would express letter. . . and the whole course of American themselves ;n the manner closest to his own legal history has been changed."74 views. Yet it was Chief Justice Warren more than anyone who was responsible for the Gideon Warren and Court TV decision. It was the Chief Justice who wanted his clerks to find a case like Gideon, led the Even an acute observer such as John Justices in granting certiroari in the case, and Gunther could list Earl Warren's outstanding suggested that Fortas be assigned to argue it. characteristics as "decency, stability, sincer­ Those were the crucial steps that made the ity, and lack of genuine intellectual distinction; Gideon decision inevitable. The rest was anti­ he will never set the world on fire or even make climax-though none but the Justices were it smoke." 77 Warren may have projected a privy to that reality .75 kindly, smiling, public picture, whose out­ Gideon was argued on January 15, 1963. In standing characteristic was its blandness. The his autobiography, Douglas called the Fortas outer image was, however, deceiving. The argument the best he had heard.76 But Fortas's Justices who served with him aU reject the eloquence was only the battering on an open blandness notion. "He was rock-hard ... ," door. The Justices, including Clark and Harlan, Justice Byron R. White said to me, "He was who had not been willing to go that far the very finn, very finn .. .. When he made up his previous year in Carnley, had reached a mind, it was like the sun went down." consensus on overruling Betts v. Brady. Led One subject on which Warren had finn by Chief Justice Warren, the January 18 convictions was television in the courtroom. Conference quickly agreed that Betts v. Because of the attention focused on that Brady's time had come. subject by the 0.1. Simpson trial, the Chief The Conference voted unanimously to Justice's privately expressed view on court TV reverse Gideon's conviction and to overrule should be of great interest today. Betts v. Brady. They followed Warren's There is no doubt about how Warren felt suggestion to limit the opinion to the case at about television in the courtroom. It was hand, without addressing the question of how Warren himself who led his Court to its 1965 far the new right to assigned counsel extended. decision in Estes v. Texas, 78 reversing a The Chief Justice assigned the opinion to conviction because the trial had been Justice Black-a gesture particularly appreci­ televised. To Warren, TV had no legitimate ated by the others because Black had delivered place in a criminal trial. To allow televising of the dissent in Betts v. Brady. When Justice criminal proceedings, he declared in an Black wrote the opinion, he simply based it on unissued Estes draft, means "allowing the his previous dissent, and he was able to courtroom to become a public spectacle and circulate a draft within two weeks. The source of entertainment."79 EARL WARREN 129

There is in the Warren papers a copy of the Justice Douglas wrote that, while Warren remarks the Chief Justice made to his law clerk would be remembered most for the major about the Estes case, as taken down by the cases, such as the Brown school segregation clerk."Bo If televised trials are pern1itted, case, "in many ways the lesser cases mirrored Warren told his clerk, "we tum back the clock the man."82 Warren the man, as well as the and make everyone in the courtroom an actor leader of the Court, was well shown in the 1967 before untold millions of people. We are asked case of Brooks v. Florida. Tyrone Brown, the again to make the determination of guilt or law clerk who worked on the case said to me innocence a public spectacle and a source of that the case "will never be significant. , , but entertainment for the idle and curious." I think, for me at least, it revealed volumes The Chief Justice recalled for his clerk how about the character of the man." "[t]he American people were shocked and The Brooks case arose out of a food riot by horrified when Premier Castro tried certain blacks in a Florida prison. Brooks and the defendants in a stadium." The same thing others involved were stripped naked and could happen here, Warren warned his clerk: placed in bare punishment cells which the "[Iff our courts must be opened to the Supreme Court described as "the windowless pervasive influence of the television camera in sweatbox ... a barren cage fitted only with a order to accommodate the wishes of the news hole in one comer into which he and his cell media, it is but a short step to holding court in mates could defecate:'83 For two weeks, they a municipal auditorium, to accommodate them were kept in these cells on a daily diet of twelve even more. As public interest increases in a ounces of thin soup and eight ounces of water. particular trial, perhaps it will be moved from Within minutes after Brooks was brought from the courtroom to the municipal auditorium and the cell, he signed a confession. The from the auditorium to the baseball stadium. confession was used to convict him of The presence of the television camera, the participating in the riot. The highest state court Chief Justice asserted in his remarks to his affinned. Brooks filed an in forma pauperis clerk, meant that all in the courtroom would act petition for certiorari. differently: "To the extent that television has At the certiorari Conference, the Justices such an inevitable impact, it deprives the voted eight-to-one, with ChiefJustice WalTen courtroom of the dignity and objectivity that is dissenting, not to take the case. The so essential for determining the guilt or consensus was that it involved a matter of innocence of persons whose life and liberty internal prison discipline in which the Court hinge on the outcome of the trial." should not become involved. Warren was Feeling the way he did about court TV, the indignant at the decision to deny certiorari. He comment Warren made to Fred W. Friendly told Brown to work up a draft dissent. Brown about the matter is scarcely surprising. After prepared a number of drafts, but the Chief Friendly had been appointed President of CBS Justice kept saying that they were not strong News, he met the Chief Justice at a 1964 enough. cocktail party. Warren wished Friendly well in At the 1994 University of Tulsa Confer­ his new job. In thanking the Chief Justice, ence on the Warren Court, Brown described Friendly said he hoped he would sti II head CBS what happened next: "So he called me to his News when they had television cameras on the office a third time. Rising from his chair, he moon and on the floor of the Supreme Court. said, 'Let's tell them what really happened. Tell Warren responded with a smile, "Good luck! them that the authorities placed these men in You will have more luck with the former than threes in tiny sweat boxes for two weeks, the latter,"81 naked and on a starvation diet with just a hole in the floor to defecate in! Tell them that they Mirror ofthe Man brought these men out, still naked, and forced written confessions from them! Tell them that In a commemorative article written at the these confessions were used to convict these time of Chief Justice Warren's death in 1974, men of new crimes, that many years were 130 1998 JOURNAL, Vol. I added to the terms they already were serving. absence in public life of men like Earl Warren, Tell them what really happened,' said the we need not weep for him. He lived the Chief, 'in plain language. Put it in those books, American Dream. Quite a number ofmen have said he, pointing to the bound volumes of done that, however. The Chief did something United States Reports on the shelves in his that few will ever do: he did what he set out to office, 'and let posterity decide who was right!' do. And that was to make the American Dream So, that was what we did. "84 Warren circulated more broadly accessible than it had ever been an extremely sharp draft dissent on November before. "89 9, 1967, and, as Brown described it to me, "just Earlier this year, James 1. Kilpatrick, the kind of sat in his office and waited." syndicated columnist, criticized my inclusion Soon thereafter, the Justices came in one of Warren among the Supreme Court greats. by one and joined the dissent. By the next "Is Earl Warren properly ranked among the 10 Conference on the case, the Chief Justice had greatest"? Kilpatrick asked. "Warren wouldn't the votes of all, not only for the granting of make my own list of the greatest 25. The certiorari, but for summary reversal. Warren gentleman was a ... politician from start to had Brown draft a short per curiam to that finish. He had the constitutional depth of a effect, which was issued December 18, 1967. dishpan; he wrote tedious opinions."9o Cases like Brooks and those discussed Perhaps Warren cannot be deemed a great above demonstrate the Warren leadership in juristic technician, noted for his mastery of the both the landmark and lesser cases. Well could common law. But he never pretended to be a Warren reply when, on his retirement, a legal scholar. To him, the outcome ofthe case reporter asked him to describe the major mattered more than the reasoning behind the frustration of his Court years, that he could not decision. He took full responsibility for the think of any. Breaking into a wide smile, the fonner and delegated the latter, in large part, to retired Chief Justice declared, "It has not been his law clerks. a frustrating experience."85 The result may have been a deficiency in judicial craftsmanship that subjected Warren In the Pantheon to academic criticism, both during and after his tenure. Without a doubt, Warren does not rank To the end of his life, nevertheless, Warren with Holmes or Cardozo as a master of the regretted not having been able to make his opinion, but his opinions have a mark of their mark in the White House. He always bel ieved own. Warren would go over the drafts that his Presidential attempt had been prepared by his clerks and make changes, frustrated by Richard M. Nixon's defection at usually adding or substituting straightforward the 1952 Republican Convention. Just after language typical of his manner of presentation. swearing in Nixon as President in 1968, Warren As one of his law clerks told me, "He had a told a close Nixon adviser that he could not penchant for Anglo-Saxon words over Latin help feeling that, but for Nixon, he himself words and he didn't like foreign phrases might have taken the Presidential oath in thrown in if there was a good American word 1953.86 that would do." It can, however, be said that Warren was As a consequence, the important Warren actually able to accomplish more as Chief opinions have a simple power all their own; if Justice than any occupant of the Oval Office they do not resound with the cathedral tones since midcentury. Indeed, as Anthony Lewis of a Marshall, they speak with the moral tells us, the Warren Court "brought about decency of a modem Micah. Perhaps the more social change than ... most Presidents. "87 Brown opinion did not articulate the juristic Another Warren biographer concludes: "The basis of its decision in as erudite manner as it only other figure in recent American history could have, but as the Chief Justice wrote in with whom Warren can be equated is Franklin his memorandum transmitting the Brown draft, Delano Roosevelt."88 John Hart Ely summed it the opinion was "prepared on the theory that up last year: "while we should weep for the [it] should be short, readable by the lay public, EARL WARREN 131

non-rhetorical, unemotional and, above all, 2 Ambrose, "The Ike Age," The New Republic, May 9, non-accusatory."9! The decision in Brown 198!, pp. 26, 30. See similarly 2 Ambrose, Eisenhower: The President ! 90 (1984): "in the sixties, emerged from a typical Warren moral Eisenhower frequently remarked that his biggest mistake judgment, with which few today would was the appointment of that dumb son of a bitch Earl disagree. The Warren opinion was so right that Warren"; Cray. Chief Justice: A Biography of Earl one wonders whether additional learned labor Warren 10 (1997): "the biggest darrm fool thing [ ever did." in spelling out the obvious was really ] Schwartz, Super Chief: Earl Warren and His necessary. Supreme Conrt-A Judicial Biography 627 When all is said and done, Warren's place (1983), hereafter cited as Super Chief. in the pantheon rests, not upon his opinions, 4 Weaver, Warren: The Man, The Court, The Era 190 (J 967). but upon his Court's decisions. If impact on 5 Douglas, The Court Years 1939-1975, 240 (1980). the law is the hallmark of the out'Handing 6 Schwartz, A Book of Legal Lists 8 (1997). judge, few occupants of the bench have been 7 Super Chief vii more outstanding than Chief Justice Warren. 8 Owens, "Book Review," 15 The Appellale Praclice Journal 46, 47 (1997). As Professor James W. Ely has written, "this 9 Super Chief at 204. was unmistakably, a great man."92 10 Reason and Passion: Justice Brennan's In the end, however, can we say that Enduring Influence 22 (Rosenkranz and Schwartz, anyone truly knew the real Earl Warren? eds. 1997). JIId. at 164. Outwardly he was, as Ely describes him, a "The Supreme Court Under Earl Warren 152 "sunny, even jolly man, a sort of lovable (Levy, ed. 1972). uncle,"93 or, as a biographer put it, "with the 13 The poem that ends, "I am the, master of my fate; I enveloping friendliness of Smokey the Bear."94 am the captain of my souL" Anyone who has seen Rodin's famous bus! of Henley, see Butler, Rodin: The From the time he took his seat, Warren tried to Shape of Genius 166 (1993), realizes at once how meet everyone in the Supreme Court building. oUI-of-date the character captured there seems today. "I'm Earl Warren," he would say, as he shook 14 Taldng Charge: The Johnson White House hands all around, including with the guards Tapes, 1963-1964, 68 (Beschloss, ed., 1997). !5 Jd. at 72. There is no tape of the Johnson-Warren and plumbers. "When he says 'good morning,' conversation in the Johnson Library. Apparently, he does it as if he hadn't seen you for a year," even Lyndon Johnson realized that this was one said one Justice.95 conversation that should remain private. Yet, his most recent biography concludes, 16 Super Chief 496. 17 Id. at 287. "For all his affability, Earl Warren remained a IS /d, at 4. private man."96 The outward camaraderie 19 White, Earl Warren: A Public Life 152 (1982). masked a different inner person. "No one," a 20 Cray. supra note 2, at 473; Super Chief 629, friend of Warren once said, "really knows this 21 Supra note 11, at 152. 22 Super Chief 183. man." "All day long," a member of Warren's 23 Cray, supra note 2, at 11. gubernatorial staff recalled, M at 262. 25 Super Chief 10. we used to hear that booming voice, 26 Warren, The Memoirs of Earl Warren 176 ( 1977). that belly laugh, that loud, 'How are Cenlral Pacific Ry. Co. v. Alameda County, 284 U.S. you?' but sometimes in the evening 463 (1932). when I worked late, I'd see him sitting 2B Baker, The Justice from Beacon Hill: The Life in his office alone, his back to the door, and Times of Oliver Wendell Holmes 629 (1991 ), his head bowed, and on that wall above Super Chief 335. him a sad, brooding picture of Lincoln. ]0 Brown v. Board of Educalion, 347 U.S. 483 (1954). That's the Earl Warren few of us ever 31 Compare, Frankfurter, Of Law and Men 9 (1956). Schwam. A History of tbe Supreme Court 286 saw and none of us ever knew. 97 (1993 ). J] 163 U.S. 537 (1896). 34 The Conference statements in Brown and other Endnotes cases are taken from notes taken by Justices who were present. Warren, lThe Supreme Court in United States ]5 This conclusion is disputed in Tushnet, "What History 178 (1922). Happened in Brown v. Board of Educalioll," 91 Col. 132 1998 JOURNAL, Vol. I

L Rev, 1867, 1903-1904 (1991), 64 Schwartz, Decision: How the Supreme Court Decides 36 This statement was confinned for me by one of the Cases 109 (1996), former clerks on a nonidentification basis, os Super Chief 593, 37 The sources of the Burton quotes and others not "" Cray, supra note 2, at 317,531; Pollack, supra note attributed in the Brown discussion in Super Chief, 56, at 358; Weaver, supra note 4, at 9. Chapter 3, 67 372 U,S. 335 (1963). Tushnet, supra note 35, at 1875, 6S Warren, "The New Home of the Profession: The 39 ld, at 1878, American Bar Center Dedication Address," 40 40 Cray, supra note 2, at 279, A,B,AJ 955, 956 (1954), 41 According to Justice Douglas, Warren had only five 69 Super Chief 458, votes, Tushnet, supra note 35, at 19 J 2. 70 Lewis, Gideon'5 Trumpet 7-8, 10 (1964). 42 Fassett, New Deal Justice; The Life of Stanley 71 316 U,S, 455 (1942), Reed of Kentucky 57 I (1994), 71 Lewis, supra note 70, at 7. 43 See id, at 570 for a portion of the Reed draft, 369 U,S. 506 (1962). 44 For the draft's text, see Schwartz, The 74 Super Chief 459, Unpublished Opinions of the Warren Court 451 75 ld, (1985), Cray, supra note 2, at 284, is mistaken in 76 Douglas, supra note 5, at 187, saying that the draft only "outlined the general n Gunther, Inside U.S,A. 18, 20-21 (1947), approach that Warren wanted the opinion to take," 78 381 U.S, 532 (1965), The text shows tbat it was a first draft of the Brown 79 Super Chief 543, opinion, containing most of its passages, 80 For its text, see Schwartz, Constitutional Issues: " The New York Times, May 18, 1954, p, 18, Freedom of the Press 163 (1992), 46 For its text, see Schwartz, supra note 44, at 463. BI Super Chief 543, 47 Virginia v, West Virginia, 222 U ,S. 17, 20 (1911), !!2 Douglas, "As Chief Justice," 60 A,B,AJ 1232 48 Scbwartz, supra note 44, at 469, (1974). 49 Reynolds v, Sims, 377 U.S, 533 83 Brooks v, Florida, 389 U,S, 413, 414 (J 967), 10 Super Chief 759. 84 The Warren Court: A Retrospective 280 377 U.s, 533 (1964), (Schwartz, ed. 1996), 12 369 U,S, 186 (1962), 85 Super Chief 766, 53 Warren, supra note 26, at 309. M ld. at 723, 54 Super Chief 504, S1 Supra note II, at 15 l. 55 Pollack, Earl Warren: The Judge WHo 88 Katcher, Earl Warren: A Political Biography Changed America, 209 (1979), 473 (1967), 5" Ely, On Constitutional Ground 44 (1996). 89 Ely, supra note 56, at 4. 57 Super Chief 508, 90 Kilpatrick, "10 Best, 10 Worst," Tulsa World, April 58 Douglas, supra note 5, at 23 L 14, 1997, p. A-8, 19 Gideon v, Wainwright, 372 U,S, 335 (1963); 91 Super Chief 97, Miranda v, Arizona, 384 U,S. 436 (1966), 92 Ely, supra note 56 at 3, 60 The New York Times, January 17, 1965, Section VI, 9J Id. p, 18, 94 Weaver, supra note 4, at 7, 61 384 U,S, 436 (1966), 9.' Super Chief 131. 62 Cray, supra note 2, at 455, 96 Cray, supra note 2, at 317, 63 Super Chief 588-89, 97 Super Chief 132, Hail to the Chief: A Bibliographical Essay on Six Chief Justices of the United States

John B. Taylor

Although Chief Justices of the United States Weston Fuller was not the prime mover on his tend to downplay the notion that their role is Court, but a focus on his tenure encapsulates significantly more important than that of Asso­ the rise of substantive due process at the hands ciate Justices, and although their tenures do of colleagues such as Justice Stephen J. Field. not necessarily coincide with periods that are, In many respects, Roger Brooke Taney adapted on the basis of other criteria, discrete eras in the work of John Marshall, but his Court be­ political or judicial history, observers of the Su­ came a focal point for the overriding mid-nine­ preme Court nevertheless commonly focus on teenth century constitutional issues of slavery Chief Justices and define judicial eras in terms and the integrity of the Union. Each of these of them. In many cases, that is fully justified. men was, moreover, personally noteworthy in The Marshall and Warren Courts surely exem­ his own way, and it would be remarkable if that plify distinctive approaches to the use of judi­ were not so. The preceding essays in this vol­ cial power and the substance of judicial ume thus appropriately focus on these six Chief policy making. Both John Marshall and Earl Justices and paint skillful portraits of their lives Warren had a major impact on those develop­ and work. What remains is to survey some of ments, and both left the Court as times were the rest of the vast literature on them that other changing. Wi lliam Howard Taft joined the scholars have produced. Court at a time of political transition and heft­ ily embodied reascendant conservatism. He G-eneral Works was succeeded by Charles Evans Hughes, whose performance~whether viewed as Broad works of constitutional history pro­ statesmanlike, vacillating, or obfuscatory-re­ vide an overview of our subjects in context. flected the doctrinal shifts of his time. Melville Alfred H. Kelly, Winfred A. Harbison, and 134 JOURNAL 1998, VOL. I

Hennan Beiz, The American Constitution: Its Supreme Court in United Stales History (Bos­ Origins and Development, 7th ed., (New York: ton: Little, Brown, 1922, 1926) is a classic his­ W. W. Norton, 1991) provides a richly descrip­ tory of the Court up to 1918 that pays consider­ tive and analytical narrative that seeks to bal­ able attention to public reaction to its decisions. ance the conflicting impulses of the Liberal na­ Robert G. McCloskey, The American Supreme tionalist and decentralized individualist themes Court, (Chicago: U ni versi ty of Chicago Press, in American constitutional development. 1960; 2d ed., revised by Sanford Levinson, 1994) Melvin I. Urofsky, A March of Liberty: A Con­ is still the best brief history of the Court and stitutional History ofthe United States (New characterization of its role. David P. Currie's York: Alfred A. Knopt~ 1988; McGraw-Hill, 1994) two volumes, The Constitution in the Supreme is a clearly written and succinct discussion of Court: The First Hundred Years, 1789-1888 the events, issues, and trends of American con­ and The Constitution in the Supreme Court: stitutional history. Leonard W. Levy, Kenneth The Second Century, 1888-1986 (Chicago: L. Karst, and Dennis 1. Mahoney, eds., Ency­ University of Chicago Press, 1985, 1990) are clopedia of the American Constitution, 4 vols. written from the perspective of a lawyer inter­ plus Supplement (New York: Macmillan, 1986, ested in methods of constitutional analysis and 1991) contains articles on Justices, judicial de­ the quality of the performance of its judicial cisions, doctrinal concepts, and historical per­ practitioners. Bernard Schwartz, A History of spectives. A useful selection from these ar­ the Supreme Court (New York: Oxford Univer­ ticles, focusing on short periods of constitu­ sity Press, 1993) is a fine recent study, and Fred tional history and the Court under each of its Rodell, Nine Men: A Political History of the Chief Justices, is the same editors' American Supreme Court from 1790 to 1955 (New York: Constitutional History (New York: Macnlillan, Random House, 1955) is an older standard work. 1989). Among general works with more spe­ John A. GruTaty employs the case-study ap­ cialized themes, Kermit L. Hall, The Magic Mir­ proach in his edited volume Quarrels That ror: Law in American History (New York: Ox­ Have Shaped the Constitution (New York: ford University Press, 1989) traces the evolu­ Harper and Row, 1964; rev. ed. 1987), which tion of American legal culture in relation to so­ contains deftly written accounts of the person­ cial, economic, and political developments. alities and politics of major decisions of the James W. Ely, Jr., The Guardian of Every Other Court under every Chief Justice considered here Right: A Constitutional History of Property except Taft. Rights (New York: Oxford University Press, Other useful studies concentrate on the 1992; 2d ed., 1998) is a fine brief history of is­ Court in particular eras. Loren P. Beth, The De­ sues concerning the constitutional protection velopment of the American Constitution, of property rights, which were central to the 1877-1917 (New York: Harper & Row, 1971) periods of every Chief Justice under consider­ surveys American constitutional development ation here except Earl Warren. See also Max from the end of Reconstruction to World War I, Lerner, "The Supreme Court and American Capi­ with major attention to the Court's work in the talism," 42 Yale Law Journal 668 (1933), and areas of governmental regulation of business Jennifer Nedelsky, Private Property and the and civil liberties and civil rights. Beth does Limits of American Constitutionalism (Chi­ not see a monolithic defense of business in the cago: University of Chicago Press, 1990), who Court's but rather a pragmatic and argues that ffom 1787 to 1937 there was a con­ inconsistent course of decision-making as it sensus that a focus on property rights as a limit dealt with novel socioeconomic developments. on governmental power was the defining prin­ William F. Swindler, Court and Constitution in ciple of American constitutionalism, and that the Twentieth Century: vol. 1 The Old Legality the problem since 1937 has been to develop an 1889-1932, vol. 2 The New Legality 1932-1968, alternative principle for the era of the regula­ supplementary volume A Modern Interpreta­ tory welfare state. tion (Indianapolis, IN: Bobbs-Merrill, 1969, 1970, Many valuable works focus on the Supreme 1974) is a narrative constitutional history set Court from its inception. Charles Warren, The against the context of social and political de- BmLIOGRAPIDC ESSAY 135

velopments and attentive to the influence of social and task leadership by Chief Justices from Congress as well as the Court on constitutional John Marshall to Warren Burger. Steamer finds interpretation. John E. Semonche, Charting that only Marshall and to a lesser extent Taft the Future: The Supreme Court Responds to a were successful in normally uniting the Court Changing Society, 1890·1920 (Westport, CT: in major cases, and that only Marshall and Greenwood Press, 1978) maintains that the Hughes achieved both personal and intellec­ Court during these years was not simply a bas­ tualleadership. Roger B. Taney displayed ele­ tion of laissez-faire dogma but rather functioned ments of both but lost his authority with Dred pragmatically to adapt the law to the require­ Scottv. Saruiford, 60 U.S. (19 How.) 393 (1857). ments of an industrializing society; it set up Melville W. Fuller, Taft, and Warren were per~ some notorious obstacles to governmental sonalleaders who deferred to others intellectu­ power, but they were relatively few. Paul ally. Steamer's best-perhaps great-Chief Murphy, The Constitution in Crisis Times, Justices-Marshall, and Warren­ 1918·1969 (New York: Harper & Row, 1972) were "ftrst and foremost very skillful politicians" provides a historian's perspective on the Court's (296). Current Chief Justice William H. evolution from protector of property rights to Rehnquist concurs. In "Chief Justices I Never protector of a very different set of personal Knew;' 3 Hastings Constitutional Law Quar­ rights. In The Supreme Court from Taft to terly 637 (1976), he surveys the chief Burger, 3d ed. (Baton Rouge: Louisiana State justiceships of Marshall, Taney, Taft, Hughes, University Press, 1979), Alpheus Thomas Ma­ and Stone and concludes that the skills re­ son finds Taft legislating on behalf of conser­ quired to be an effective Chief may be more vatism and undermined by a fear of progres­ readily developed in a political than a legal ca­ sivism, while Hughes (in a view less flattering reer. Rehnquist's title gently mocks Justice Felix than many others) is seen as leading a camou­ Frankfurter's pretentious "Chief Justices I flaged retreat from conservatism, starting in Have Known," 39 Virginia Law Review 883 1937. The revolutionary Warren Court is favor­ (1953). Writing before Earl Warren joined ably evaluated against a broad background of the Court, Frankfurter characterized Fuller as judicial history. an excellent presiding officer and moderator, Taft as a great judicial reformer, and Hughes as The Chief Justiceship a masterful presiding officer and assigner of opinions. As of 1953, Frankfurter considered Among works on the office of Chief Jus­ Marshall, Taney, and Hughes as the three great­ tice, PeterG. Fish, The Office of Chief Justice est Chiefs. (Charlottesville: White Burkett Miller Center of If he had written after Warren's time, Public Affairs of the University of Virginia, 1984) Frankfurter's judgment might well have been analyzes the office in its modern form and in­ the same. Bernard Schwartz, 'The Judicial Lives cludes material on the administrative philoso­ of Earl Warren," 15 Suffolk University Law Re­ phies and programs of William Howard Taft, view 1 (1981) recounts the story of how War­ Charles Evans Hughes, and Earl Wan·en. David ren, a neophyte on the Court, was recruited by 1. Danelski, "The Influence of the ChiefJustice both Justice Hugo L. Black and Justice Felix in the Decisional Process," in Courts, Judges, Frankfurter. Warren initially sided with the and Politics: An Introduction to the Judicial Frankfurter wing but had moved to Black's camp Process, 3d ed., Walter F. Murphy and by the end of the 1955 Term. The catalyst, ac­ C.Herman Pritchett, eds. (New York: Random cording to Schwartz, was a vote Warren House, 1979) assesses Chief Justices Taft and ted in Irvine v. California, 347 U.S. 128 (1954), Hughes (as well as Harlan Fiske Stone) in terms a search and seizure case. In "Felix Frankfurter of task and social leadership, opinion assign­ and Earl Warren: A Study of a Deteriorating ment, and ability to unite the Court. Robert 1. Relationship," 1980 Supreme Court Review 115, Steamer, Chief Justice: Leadership and the Schwartz draws on the Frankfurter papers to Supreme Court (Columbia: University of South document the subsequent deterioration of his Carolina 1986) is a comparative study of personal relationship with Warren. 136 JOURNAL 1998, VOL. I

Biographical Collections Marshall (Richmond, VA: Garrett & Massie, 1961). Selections from the autobiography and General collections of judicial biography are other writings are reprinted in Stanley I. Kutler, another good starting place for consideration ed., John Marshall (Englewood Cliffs, NJ: of the Chief Justices under consideration. Leon Prentice-Hall, 1972), which also includes ex­ Friedman and Fred L. Israel, eds. , The Justices cerpts from the positive and negative opinions of the United States Supreme Court 1789- of contemporaries and evaluations of modem 1995: Their Lives and Major Opinions, 5 vols. scholars. Marshall 's political views are reflected (New York: Chelsea House, 1995) contains es­ in his The Life of George Washington, 5 vol. says on all the Justices, with focus on their (Philadelphia: C. P. Wayne, 1805-1807; reprint, Court tenure, and texts of representative opin­ FrederickSburg, VA: The Citizens' Guild of ions they wrote in Supreme Court cases. Clare Washington's Boyhood Home, 1926). Jack L. Cushman, ed., The Supreme Court Justices: Cross, "John Marshall on the French Revolu­ Illustrated Biographies, 1789-1995, 2d ed. tion and on American Politics," 12 William and (Washington, D.C.: Congressional Quarterly, Mary Quarterly, 3d series 631 (1955) presents 1995) provides succinct portraits of the lives of nine of Marshall's letters to Timothy Pickering, the Justices, with attention to their activities four from the period when the latter was Secre­ prior to joining the Court. Melvin I. Urofsky, tary of State and Marshall was on the diplo­ ed., The Supreme Court Justices: A Biographi­ matic mission that led to the XYZ Affair, and caJ Dictionary (New York: Garland Publishing, five from the period 1800-1808 showing 1994) presents biographical essays focusing Marshall's ardent Federalism. Charles C. Smith, on Court service. All of these works list other ed., "Letters of Chief Justice Marshall," 14 Pro­ biographical references. Both Allison Dunham ceedings of the Massachusetts Historical So­ and Philip B. Kurland, eds., Mr. Justice (Chi­ ciety, 2d series 320 (1900) reprints letters on cago: University of Chicago Press, 1956) and public issues, mostly to Justice Joseph Story, G. Edward White, The American Judicial Tra­ while Charles Warren, "The Story-Marshall dition: Profiles of Leading American Judges Correspondence," 21 William and Mary Quar­ (New York: Oxford University Press, 1976) con­ terly, 2d series 1 (1941) presents some of Story's tain profiles of Marshall, Taney, and Hughes; letters to Marshall. James A. Servies, A Bibli­ White also paints a group portrait of the War­ ography of John Marshal.1 (Washington: United ren Court. Infonnative accounts of the appoint­ States Commisssion for the Celebration of the ments of the Justices may be found in Henry J. Two Hundredth Anniversary of the Birth of Abraham, Justices and Presidents: A Politi­ John Marshall, 1956) is an annotated bibliogra­ cal History of Appointments to the Supreme phy of Marshall's writings and selected writ­ Court, 3d ed. (New York: Oxford University ings about him, including pamphlets and Press, 1992). speeches, oriented more toward historical un­ derstanding than legal analysis. Irwin S. John Marshall Rhodes, The Papers of John Marshall: A De­ scriptive Calendar (Norman: University of In 1827, at the request of Justice Joseph Oklahoma Press, 1969) provides a chronologi­ Story, Marshall wrote An Autobiographical cal listing of Marshall's papers-court deci­ Sketch that concludes with his appointment sions, documents, letters, etc.-which are as ChiefJustice in 1801. This brief account was widely scattered. Eight of a projected twelve edited and published more than a century later comprehensive volumes of The Papers of John by John Stokes Adams (Ann Arbor: Univer­ Marshall (Chapel Hill: University of North Caro­ sity of Michigan Press, 1937). We can learn lina Press, 1974--), under various editors, have more of his personal life from "Letters from John appeared so far. They contain all constitutional Marshall to His Wife," 3 William and Mary and representative other Supreme Court opin­ Quarterly, 3d series 73 (1923) and from letters ions, circuit court opinions, and some corre­ collected by Frances Norton Mason in My spondence (but most of that appears not to Dearest Polly: Letters of Chief Justice John have been preserved). BIBLIOGRAPmC ESSAY 137

Since most of what we do have from on the other hand, in his review article Marshall's own hand has been made available "Marshall and the Constitution," 5 Minnesota only fairly recently, it is not surprising that his Law Review 1 (1920) affirms that Beveridge's first great biographer, Albert 1. Beveridge, la­ work is based on "astonishingly accurate and mented our clear lack of personal information exhaustive historical research" (2). Cushman about his subject. Beveridge's The Life of John also has high praise for Edward S. Corwin's Marshall, 4 vols. (Boston: Houghton Mifflin, John Marshall and the Constitution: A 1916, 1919) is the classic biography of the "fron­ Chronicle of the Supreme Court (New Haven, tiersman, soldier, legislator, lawyer, politician, CT: Yale University Press, 1919), which is also diplomat, .. . statesman, and . . . constructive admiring but somewhat more critical of Marshall jurist" (1 :vi), a highly favorable life-and-times and sympathetic to Thomas Jefferson. account which takes great care to set Marshall's Cushman finds consensus on Marshall's con­ acts in the context of contemporary history. tributions in enhancing the authority of the Landon C. Bell, "John Marshall: Albert J. Court, establishing judicial review, furthering Beveridge as a Biographer," 12NS Virginia Law nationalism, protecting commerce, and guaran­ Register 641 (1927) maintains that Beveridge teeing the sanctity of contracts. "is not a dependable historian and is a biased Among more recent biographical works, biographer" (641), exalting Marshall and deni­ David Loth's Chief Justice: John MarshalJ and grating Jefferson. Robert Eugene Cushman, the Growth of the Republic (New York: w.w.

Jefferson's political aUy, Spencer Roane, was the most prominent member of Virginia's highest court and the state's most powerful politician. The conventional view has long been that Roane, rather than Marshall, would have been Chief Justice if Jefferson, rather than Jobn Adams, had appointed Oliver Ellsworth's successor. Recent scholarship now casts doubt on that assumption. 138 JOURNAL 1998, VOL. I

Norton, 1949) is an admiring narrative of events, with the aid of Gerald Gunther, The Marshall without close analysis of cases, while Leonard Court and Cultural Change, 1815-1835 (New Baker's John Marshall: A Life in Law (New York: Macmillan, 1988; abridged edition, New York: Macmillan, 1974) is a comprehensive de­ York: Oxford Universi ty Press, 1991) provides a scriptive history of Marshall's life and career, new perspective by enlarging upon legal and with major attention to the period before he historical analysis to view the Marshall Court joined the Court. Francis N. Stites, John as a mechanism of adaptation of American re­ Marshall: Defender ofthe Constitution (Bos­ publicanism to cultural change as the Revolu­ ton: Little, Brown, 1981) is a brief account tionary era receded. Its technique, White ar­ of Marshall's life and major accomplishments, gues, was simultaneously to adapt and univer­ with brisk and incisive interpretations. In John salize first principles while legitimating, but also Marshall: Definer of a Nation (New York: Henry masking, the discretionary nature of that judi­ Holt, 1996), Jean Edward Smith's goal is not to cial enterprise. An earlier and far more critical break new legal ground-he deftly summarizes work is Charles Grove Haines, The Role of the existing scholarship on Marshall's constitu­ Supreme Court in American Government and tional decisions-but rather to address the Politics 1789-1835 (Berkeley: University of problem Beveridge first noted: our lack of knowl­ California Press, 1944; reprint, New York: Da edge of Marshall the man. His focus is thus Capo Press, 1973), an in-depth political history Marshall's character and the influences that of the Court, written from a Jeffersonian per­ shaped it, and in telling Marshall's story he spective to counter the prevailing, laudatory makes insightful comments as well about the view. Haines considers Marshall to have func­ other as a conservative political the {1p:mn,rr<,rv whose jurispru­ pave the way to civil war. Herbert Johnson, The Chief Justiceship of John Marsball, 1801-1835 (Columbia: University of PennsyLvania Law Review 3 (1955). South Carolina Press, 1997) considers the The well-known story of the appointment Marshall Court in light of recent controversy of Chief Justice Marshall and many other Fed­ about judicial review and the jurisprudence of eralist judges by the lame-duck President John original intent. Johnson examines the politics Adams is ably told in two articles by Kathryn of the times, the personnel of the Court, and "The Appointment of Chief Justice Marshall's leadership, and he reviews the Marshall," 17 William and Mary Quarterly, 3d Court's work in the areas of constitutional, in­ series 143 (1960) and "The Midnight Judges," ternational, and private law. 109 University of Pennsylvania Law Review John Marshall is, of course, most famous 494 (1961). The history of the Marshall Court is for his decision in Marbury v. Madison, 5 U.S. recounted most comprehensively in two vol­ (l Cr.) 137 (1803), and the establishment of the umes of The Oliver Wendell Holmes Devise power of judicial review. That topic is explored History of the Supreme Court of the United in W Melville Jones, ed. Chief Justice John States. George Lee Haskins and Herbert A. Marshall: A Reappraisal (Ithaca, NY: Cornell Johnson, Foundations of Power: John University Press for the College of William and Marshall, 1801-1815 (New York: Macmillan, Mary, 1956), an important collection of essays 1981) provides detailed coverage of roughly that also examines the political and ideological the first half of Marshall's tenure as Chief Jus­ context within which the Marshall Court func­ tice, focusing on the Court's successful effort tioned and Marshall's contributions to the law to avoid the alternative fates of survival through and to the institution of the Court. William W. irrelevance or defeat by hostility. The Court's Van Alstyne provides an indispensable guide strategy, the authors argue, was to assert its to the Marbury opinion in "A Critical Guide to power but to respect its proper bounds, and to Marbury v. Madison, 1969 Duke Law Journal build a record of solid perfonnance in noncon­ 1, a careful, point-by-point critique of Marshall 's troversial areas of the law. G. Edward White, holdings and their justification, with discus- BIBLIOGRAPIDC ESSAY 139 sion of the plausible alternatives. A collection great case: he should have recused himself, of views on judicial review from prominent com­ Marbury's right to the commission should not mentators of the founding generation is also have been decided, the question of his right to included. In John Marshall (Boston: Houghton the commission was wrongly decided, the con­ Mifflin, 1901; reprint New York: DaCapo Press, stitutionality of Section 13 of the Judiciary Act 1974). James Bradley Thayer, an esteemed skep­ of 1789 should not have been decided, and the tic of an expansive concept of judicial review, question of constitutionality was wrongly de­ finds many important questions about that cided. Marshall forced the issue in this fashion power unanswered in Marbury and regrets that because support for judicial review was slip­ Marshall did not give this case the same full ping away; the Court was fortunate that atten­ treatment evident in his later great opinions. tion focused upon the immediate political is­ He wishes, too, that Marshall had been obliged sue, although it suffered from being perceived to answer the questions raised by Judge John as "the champion of a defeated faction" (680). B. Gibson in Eakin v. Raub, 12 Sergeant and Grant's richly ironic final judgment is that "noth­ Rawle 330, 344 (Pa. 1825). Donald O. Dewey ing remains of Marbury v. Madison except its argues in Marshall versus Jefferson: The Po­ influence upon the development of our system litical Background of Marbury v. Madison of constitutional law" (681). Not surprisingly, (New York: Alfred A. Knopf, 1970) that Marshall Justice Harold H. Burton's "The Cornerstone wanted to establish judicial review but that he of Constitutional Law: The Extraordinary Case was far more concerned with contemporary of MarbUlY v. Madison," 36 American Bar political needs than with the elaboration of a Association Journal 805 (1950), defends a de­ full rationale for that doctrine. The decision was cision that met the "need . . . for a convincing based on an extremely narrow reading of the lecture on constitutional law upholding the es­ Constitution, which was certainly not sential power of the Court while saving the face Marshall's style thereafter. The opinion was of the Chief Executive" by not formally ruling legally flawed and left major questions about against him (881). Burton agrees with Grant judicial review unanswered, Dewey concludes; that the Court could have avoided the consti­ its significance flows from what later judges tutional question, or decided it the other way, did with it. In "John Marshall's Selective Use but he applauds it for not doing so in order to of History in Marbury v. Madison," 1987 Year­ establish the critical power of judicial review, book of the Supreme Court Historical Society which Marshall understood in terms of an au­ 82, also in 1986 Wisconsin Law Review 301, thoritative and binding judicial power of con­ Susan Low Bloch and Maeva Marcus note that stitutional interpretation, intended to avoid the Marshall read the Constitution narrowly in ig­ chaos of the Jeffersonian conception of con­ noring the fact that Section 13 of the Judiciary current review. David E. Engdahl, "John Act of 1789 had been invoked without ques­ Marshall's 'Jeffersonian' Concept of Judicial tion in the 1790s. By ignoring those contrary Review," 42 Duke Law Journal 279 (1992), precedents in MarbuIY, Marshall was able to takes issue with that interpretation, arguing that trade larger original jurisdiction for the power Marshall in Marbury did not hold the Federal­ of judicial review-which seems like a pretty ist "judicial supremacy" theory of judicial re­ good bargain. One might ask why he did not view-that the Supreme Court's interpretations overrule those precedents; we may surmise that of the Constitution are authoritative and bind­ that would have undermined a defense of judi­ ing on all other organs of government-but cial review buttressed by examples confined to rather the Jeffersonian view-that each organ the need to correct obvious deviations from of government is bound to interpret the Con­ the Constitution, and would have highlighted stitution independently as the need arises in the the exercise of judicial discretion. course of its work, and that such interpreta­ 1. A. C. Grant's "MarbuIY v. Madison To­ tions are not binding on other organs. day," 23 American Political Science Review Engdahl suggests the wisdom of not having 673 (1929), is a withering critique that argues a final constitutional interpreter after all, and that Marshall was wrong at every turn in this he revives the arguments of the 1930s against 140 JOURNAL 1998, VOL. I judicial supremacy. Kansas, 1989) and "Substantive Due Process, Engdahl's is by no means the only revision­ Selective Incorporation, and the Late-Nine­ ist interpretation. Sylvia Snowiss, Judicial Re­ teenth Century Overthrow of John Marshall's view and the Law of the Constitution (New Ha­ Constitutional Jurispmdence," 5 Journal ofLaw ven, CT: Yale University Press, 1990), argues and Politics 499 (1989), Robert Lowry Clinton that prior to Marshall, the understanding of ju­ offers yet another revisionist perspective: that dicial review was as "an extraordinary political in Marbury Marshall did not assert the Court's act, a judicial substitute for revolution," (3) en­ final authority to interpret the Constitution in forcing the fundamental values of a social con­ ways that bind other branches beyond cases tract. Marshall-not in Marbury but in cases where the statute concerns the Court's perfor­ over the following three decades--converted mance of its own functions. He goes on to judicial review from this political act to a legal argue that the Supremacy Clause gives the one, from the interpretation of fundamental law Court much clearer authority to make bind­ (incidentaHy written down) to the interpreta­ ing decisions about state laws, which may tion of supreme written law, to be judicially con­ be why the Marshall Court invalidated sev­ strued and applied by the same processes as eral of them but only one Act of Congress. statutes are. Marshall adroitly camouflaged this Cases like McCulloch v. Maryland, 17 U.S. (4 basic transformation, Snowiss argues, so it has Wheat.) 316 (1819) and Gibbons v. Ogden, 22 gone unrealized (although Alexander Bickel U.S. (9 Wheat.) 1 (1824), on the other hand, began to sense it in The Least Dangerous display no great nationalism but are rather ex­ Branch: The Supreme Court at the Bar of PoIi­ emplars of great deference to Congress. The tics (Indianapolis, IN: Bobbs-Merrill, 1962». modern, expansive, activist conception of judi­ Elizabeth McCaughey's "Marbury v. Madison: cial review derives not from Marshall, Clinton Have We Missed the Real Meaning?" 19 Presi­ concludes, but from substantive due process dential Studies Quarterly 491 (1989), suggests and the incorporation of the Bill of Rights. All that Marshall was propounding a circumscribed of this is too much for Dean Alfange, Jr. In and defensive concept of judicial review, de­ "Marbury v. Madison and Original Understand­ signed to allay contemporary hostility to the ings of Judicial Review: In Defense of Tradi­ judiciary by restraining judicial discretion. tional Wisdom," 1993 Supreme Court Review Judges had been enforcing common law prin­ 329, Alfange upholds the traditional view of ciples, McCaughey argues; now they were to Marbury against Snowiss, O'Fallon, and be limited to enforcement of a written Constitu­ Clinton, whom he shows to be inconsistent with tion, ordained by the people. James M. each other as well as with the canon. In a lengthy O'Fallon, "Marbury," 44 Stanford Law Review critique, Alfange finds the first two 219 (1992), argues just the opposite: that wrongheaded and dismisses Clinton's interpre­ Marshall's main focus was the immediate po­ tation of Marbury as "malarkey" (333). Al­ litical situation and that his primary purpose though Judge Gibson's dissent in Eakin v. was a conservative desire to keep the people at Raub demolishes Marshall's attempt to deduce arm's length. In this view, bills of attainder and the Court's power of judicial review from the ex post facto laws are not just examples of ob­ fact of a written Constitution, Alfange main­ vious occasions for judicial review, but real tains, a pantheon of distinguished commenta­ fears. Marshall need not be seen as a visionary tors (who appreciated Gibson) are not wrong and may be seen as fighting a lost battle against about what Marshall set out to accomplish in majoritarian democracy. Judicial review did not Marbury, or why he did so. need an elaborate justification because its va­ Marshall handed down many other great lidity was widely aCknowledged. Marshall's constitutional decisions besides Marbury. All concern for judicial review, O'Fallon concludes, of them are collected in Joseph P. Cotton, Jr., "has been exaggerated by the desire of legal ed., The Constitutional Decisions of John scholars for a strong foundation for this doc­ Marshall, 2 vol. (New York: G. P. Putnam's Sons, trine" (219). In Marbury v. Madison and Judi­ 1905; reprint, New York: Da Capo Press, 1969), cial Review (Lawrence: University Press of with introductory notes to set the political and BmLIOGRAPIDC ESSAY 141 legal context. McCulloch v. Maryland was so ism and Restraint (Lexington, MA: Lexington important to Marshall that when it provoked BookslD.C. Heath, 1982). Mendelson's short criticism in the form of pseudonymous news­ answer is no . Neither the Hughes nor Warren paper essays actually written by his arch-rival Court activists can claim Marshall as their in­ Spencer Roane and another Virginia judge, he tellectual father. he majntains; that honor goes replied in kind. Gerald Gunther, ed., John to Justice Stephen J. Field. Marshall's Defense of McCulloch v. Mary­ The great commerce power case Gibbons v. land (Stanford, CA: Stanford University Press, Ogden is analyzed in Maurice G. Baxter, The 1969), reproduces thjs remarkable exchange, Steamboat Monopoly: Gibbons v. Ogden, 1824 along with Marshall's opinion in the case. (New York: AlfredA. Knopf, 1972) and in George Marshall is often praised for his ability to tum L. Haskins. "John Marshall and the Commerce the immediate circumstances of cases to his Clause of the Constitution," 104 University of larger purposes, but Howard 1. Pious and Gor­ Pennsylvania Law Review 23 (1955), which don E. Baker find him overreaching in also discusses the immediate significance of "McCulloch v. Maryland: Right Principle, other cases and traces their continuing influ­ Wrong Case," 9 Stanford Law Review 710 ence on the law. Nathan Isaacs, "John Marshall (1957). The principle of implied powers was on Contracts: A Study in Early American Juris­ crucial, the authors assert, although Marshall ticTheory," 7 Virginia Law Review 413 (1921). had asserted it fourteen years earlier in United analyzes Marshall's view of the law of contracts States v. Fisher, 6 U.S. (2 Cr.) 358 (1805). The in light of the common law understanding of highly unpopular bank, however-more a pri­ the late eighteenth century, and Steven R. Boyd vate, profit-making entity than an arm of the adds more background in "The Contract Clause government-was not a good candidate for tax and the Evolution of American Federalism, immunity. The case was thus not a propitious 1789-1815," 44 William and Mary Quarterly 3d vehicle for the assertion of vital and correct series 529 (1987). c. Peter Magrath studies a principles, the authors majntain, and Maryland seminal case in Yazoo: Law and Politics in the could have prevailed without sacrifice of those New Republic: The Case of Fletcher v. Peck principles. Justice Felix Frankfurter expresses (providence. RI: Brown University Press, 1966), the traditional view in "John Marshall and the delving into the Yazoo land frauds that led to Judicial Function," 69 Harvard Law Review 217 Fletcher v. Peck , 10 U.S . (6 Cr.) 87 (1810), in (1955), where he calls McCulloch Marshall's which Marshall fashioned the law of obligation greatest case and his admonition that "it is a of contracts-and which may have been the Constitution we are expounding" the "single flfSt Supreme Court case in which an organized most important utterance in the literature of interest group engaged in lobbying through constitutional law" (218). In "It Is a Constitu­ litigation. A second key Contract Clause case tion We Are Ex pounding: Chief Justice Marshall was Dartmouth College v. Woodward, 17 U.S. and the 'Necessary and Proper' Clause." 12 (4 Wheat.) 518 (1819); it is fully considered in lournal ofLegal History 190 (1991). however. Francis N. Stites, Private Interest & Public A. I. L. Campbell tentatively suggests a revi­ Gain: The Dartmouth College Case, 1819 sionist interpretation of the doctrine of the case, (Amherst: University of Massachusetts Press. namely that Marshall did not intend his famous 1972). Taking for granted that the case was phrase to justify broad interpretation of the ultimately about the rights of business corpo­ Constitution in general. It may have signified rations, Bruce A. Campbell, "John Marshall, the only a warrant for legislatjve adaptation, Virginia Political Economy, and the Dartmouth founded ultimately on the authority of the College Decision," 19 American lournal of people. If so, Canpbell argues, then "a case Legal History 40 (1975). explores the develop­ founded on judicial restraint may have become ment of Marsh all 's views in relation to his busi­ a by-word for judkial activism" (219). Wallace ness and commercial dealings in the context of Mendelson asks, "Was Chief Justice Marshall the Virginia political economy. Tiling this line an Activist?" in Stephen C. Halpern and of argument a good deal further, Max Lerner, Charles M. Lamb, eds., Supreme Court Activ- "John Marshall and the Campaign of History," 142 JOURNAL 1998, VOL. I

39 Columbia Law Review 396 (1939), places poses of American constitutionalism: protec­ more emphasis on Marshall's economic goals tion of the rights of life, liberty, and prop- than on his constitutional theory, finding him maintenance of a powerful but republi­ "the strategic link between capitalism and con­ can government, and furtherance of the rule of stitutionalism" (403). He faults the reasoning fundamental law through judicial statesman­ of Marbury and Fletcher, viewing them along ship. The volume also includes an extended with Dartmouth College as part of a counter­ analysis of Oliver Wendell Holmes' critical es­ revolution by the propertied classes. Marshall's say "John Marshall," which may be found in great contribution was his nationalism-again his Collected Legal Papers (New York: Peter in aid of the propertied classes, but with the Smith, 1952). William E. Nelson, "The Eigh­ tide of history. The irony, Lerner notes, is that teenth-Century Background of John Marshall's Marshall's concepts of vested rights and judi­ Constitutional Jurisprudence," 76 Michigan cial supremacy were combined by subsequent Law Review 893 (1978), rejects the views that Courts to undermine his conceptions of the Marshall basically sought to write Federalist national commerce power and the Necessary political precepts into constitutional law, or to and Proper Clause. An opposing irony is sug­ serve the interests of a privileged class, or sim~ gested by Edward S. Corwin in "John Marshall, ply to apply the revealed law. Somewhat tenta­ Revolutionist Malgre Lui," 104 University of tively, he asserts that Marshall sought to medi­ Pennsylvania Law Review 9 (1955). Marshall, ate between a style of resolving issues by a revolutionary towards the British, was char­ majoritarian political conflict-in place by acterized by Beveridge as a supreme conserva­ 1800--and an older, mid-eighteenth century tive by the end of his career. Though Marshall­ style of resolving issues by resort to nonpoliti­ who was for individual Jiberty, not social equal­ cal consensus on basic values. Mediation ity-would not have approved, Corwin de­ meant the courts should employ the latter clares, his opinions in Gibbons and McCulloch method whenever possible and defer to politi­ became the basis for the culmination of a mod­ cal resolution by the other branches when con­ ern liberal revolution in Justice Stone's opinion sensus was lacking. As Nelson realizes, his in United States v. Darby, 312 U.S. 100 (l941). interpretation and the three he rejects are not Marshall's ideological and jlllisprudential necessarily mutually exclusive. In a compre­ beliefs and objectives have been the subject of hensive reassessment, "John Marshall : The much scholarly debate, which can only be Nature of Law in the Early Republic," 98 Vir­ sampled here. Morton 1. Frisch, "John ginia Magazine of History and Biography 57 Marshall's Philosophy of Constitutional Repub­ (1990), Richard A. Brisbin, Jr. examines licanism," 20 Review qfPolitics 34 (1958), is an Marshall's conception of law from the vantage early attempt to provide a systematic exposi­ point of political thought, which in his time was tion of Marshall's political ideas. SamuelJ. undergoing a transition from republicanism to Konefsky, John Marshall and Alexander liberalism. Brisbin faults the interpretations of Hamilton: Architects of the American Consti­ Faulkner; Haskins and Johnson; Nelson; tution (New York: Macmillan, 1964), examines Snowiss; and White (whose focus on cultural the parallels between Hamilton and Marshall in change comes closest to getting it right), argu­ the furtherance of the social philosophy they ing that Marshall was neither a repUblican nor largely shared, and Francis Newton Thorpe, a liberal but a jurist drawing on opposing sets "Hamilton's Ideas in Marshall's Decisions," I of ideas, with consequent tensions and incon­ Boston University Law Review 60 (corrected) sistencies in his opinions. Thomas C. Shevory, (1921), employs extensive quotation to illus­ ed., John Marshall's Achievement: Law, Poli­ trate Marshall's agreement with Hamilton rather tics, and Constitutional Interpretations (New than Jefferson. Robert K. Faulkner's The Ju­ York: Greenwood Press, 1989), is a philosophi~ risprudence of John Marshall (Princeton, NJ: cally oriented collection of essays that also ex­ Princeton U ni versity Press, 1968), is a seminal amine Marshall's thought from the perspective study that presents a synthesis of Marshall's of late eighteenth and early nineteenth century understanding and pursuit of the great pur- conceptions of republicanism and liberalism, BIBLIOGRAPIDC ESSAY 143

as well as modern approaches to legal studies. todcal strategy. Marshall was concerned that Shevory's John Marshall's Law: Interpreta­ not just the judiciary, but the national govern­ tion, Ideology, and Interest (Westport, CT: ment in general, be perceived as legitimate. Greenwood Press, 1994), written from a con­ Rather than trying to prove debatable premises, cern for contemporary liberalism as the legiti­ Marshall assumed them and argued that the miz,er of American political life, views Marshall favorable consequences that would ensue were as less legal than Faulkner would have him, in accord with the sovereign will of the people and more concerned to reach results in accord as ordained in the Constitution. But the legiti­ with his interests and ideology. The author, macy of the Constitution itself was not yet firmly however, never fully pulls all his ideas together. established, Eisgruber argues; Marshall could John Choon Yoo holds out for an older, con­ establish the legitimacy of both the Constitu­ trary view. In "Marshall's Plan: The Early Su­ tion and actions taken under it if he could re­ preme Court and Statutory Interpretation," 101 solve constitutional ambiguities as meaning Yale Law Journal 1607 (1992), he argues that what the sovereign people were persuaded was in construing statutes, Marshall sought to dis­ in their best interests. cover congressional intent rather than to fur­ Debates about Marshall's attitude toward ther Federalist political principles, in order to democracy inevitably raise the issue of his re­ develop the perception of the Court as a non­ lationship to Thomas Jefferson. Donald G. partisan finder of the law. Charles F Hobson is Morgan's biography of Jefferson's most impor­ a historian seeking to place Marshall in the con­ tant appointee to the Supreme Court, Justice text of American political thought. In The Great William Johnson: The First Dissenter (Co­ CWefJustice: John Marshall and the Rule of lumbia: University of South Carolina Press, Law (Lawrence: University Press of Kansas, 1954), presents a moderately critical view of 1996), Hobson examines the principaJ foci of Marshall from a Jeffersonian perspective. Julian his jurisprudence to illustrate his distinctive role P. Boyd's view in "The Chasm that Separated in applying the seminal ideas of the founding Thomas Jefferson and John Marshall," in Es­ era to concrete problems of governance in the says on the American Constitution, ed. era of growth and development. Concluding Gottfried Dietze (Englewood Cliffs, NJ: with an interpretation of Marshall's conception Prentice-Hall, 1964), is evident from his title. of the judicial function, Hobson finds Marshall Boyd, sympathetic to Jefferson, sees the great expounder of the Constitution to be Marshall-the representative of law- and fundamentally in harmony with James Madi­ Jefferson-the representative of democracy­ son, father of the Constitution. as harboring not only irreconcilable personal We have already noted that Charles Grove differences but also irreconcilable views of man Haines and James M. O'Fallon view Marshall and society and theories of democratic gov­ as inimical to democracy. Saul K. Padover, ''The ernment as well. Neither understood the other, Political Ideas of John Marshall," 26 Social and neither was fit for the other's role. In the Research 47 (1959), argues that Marshall was great debate over the role of the judiciary, Boyd "conservative on questions relating to prop­ observes, Jefferson forbore but Marshall could erty but a democrat in his fundamental political not see that. In an important revisionist study, views" (55), fearing only excessive democracy Richard E. Ellis, The Jetfersoruan Crisis: Court and rejecting aristocratic rule. Christopher L. and Politics in the Young Republic (New York: Eisgruber discerns a complex relationship Oxford University Press, 1971), downplays the among Marshall's constitutional philosophy, conflict between Jefferson and Marshall, main­ his attitude toward democracy, and the dispar­ taining that they had more in common than ei­ ity between the statesmanlike quality of ther they or subsequent historians have been Marshall's opinions and their technical defi­ willing to admit. The real battles were between ciencies (such as failure to cite precedent). In the radical and moderate factions of their re­ "John Marshall's Judicial Rhetoric," 1996 Su­ spective parties, Ellis asserts; Marshall and preme Court Review 439, he fmds the explana­ Jefferson led the moderates on each side (some tion for the latter problem in a conscious rhe- of Jefferson's rhetoric to the contrary notwith- 144 JOURNAL 1998, VOL. I standing) and shared a belief in an indepen­ Marshall over the power of the Supreme Court dent judiciary. Robert Lowry Clinton adopts a to review decisions of state supreme courts. similar stance in "Game Theory, Legal History, The account begins with Marshall's arguments and the Origins of Judicial Review: A Revi­ in the Virginia ratifying convention of 1788 and sionist Analysis of Marbury v. Madison," 38 culminates in his opinion in Cohens v. Virginia, American Journal of Political Science 285 19 U.S. (6 Wheat.) 264(1821). MarkA. Graber, (1994). Applying game theory to the circum­ "The Passive-Aggressive Virtues: Cohens v. stances of the Marbury case, Clinton argues Virginia and the Problematic Establishment of that they did not constitute a game that Marshall Judicial Power," 12 Constitutional Commen­ won and Jefferson lost, but reveal instead a tary 67 (1995), argues that Cohens is not the "tacit political compromise" (300). The charge culmination of the firm establishment of judi­ that Marshall's conduct of the Burr trial was cial review because, like Marbury, it asserts a marred by his hostility toward Jefferson, put firm principle but avoids a decision that could forward most prominently by Edward S. Corwin have been flouted. A further problem is that in his book on Marshall cited above, is con­ Marshall engages in a questionable manipula­ vincingly refuted by Robert K. Faulkner, "John tion of a technical exercise in statutory con­ Marshall and the Burr Trial," 53 Journal of struction to conceal the basic inconsistency of American History 247 (1966). Cohens with McCulloch v. Maryland. In both There is less doubt about Marshall's rela­ Marbury and Cohens, Graber points out, the tionship with Jefferson's political ally Spencer Court lacks power in the sense of being able to Roane, the most prominent member of Virginia's make someone do something he would not oth­ highest court and the state's most powerful erwise do; hence Marshall's resort to passive­ politician (whose attack on McCulloch v. Mary­ aggressive techniques to further political goals. land is discussed above). The Note "Judge William E. Dodd, "Chief Justice Marshall and Spencer Roane of Virginia: Champion of States' Virginia, 1813-1821," 12 American Historical Rights-Foe of John Marshall," 66 Harvard Review 776 (1907), recounts the Marshall feud Law Review 1242 (1953), reviews Roane's po­ with the Virginia power structure, focusing on litical and judicial career, reporting that almost Cohens and Martin v. Hunter's Lessee, 14 U.S. every important judicial decision he made con­ (l Wheat.) 304 (1816). Marshall recused him­ tradicted a Supreme Court ruling. The conven­ self in Martin because he was a very inter­ tional view has long been that Roane rather ested party. F. Thornton Miller, "John Marshall than Marshall would have been Chief Justice if versus Spencer Roane: A Reevaluation of Mar­ Jefferson rather than John Adams had ap­ tin v. Hunter's Lessee," 96 Virginia Magazine pointed Oliver Ellsworth's successor. Accept­ of History and Biography 297 (1988), focuses ing that view, Charles Kerr, "If Spencer Roane more on the issue of title to the land in question Had Been Appointed Chief Justice Instead of than that of the power of appellate review, not­ John Marshall," 20 American Bar Association ing that the Supreme Court could not enforce Journal 167 (1934), argues that Roane's posi­ Justice Story's decision on the merits (which tions on judicial power and state sovereignty he finds unpersuasive) and that the Marshall would have made our constitutional develop­ family's legal troubles continued ..Miller agrees ment profoundly different. The assumption that there is no evidence that Jefferson would here, of course, is that the other Justices would have appointed Roane. have been compliant. Samuel R. Olken, "John Saul K. Padover, in "The Political Ideas of Marshall and Spencer Roane: An Historical John Marshall" reflects a common view when Analysis of their Conflict over U.S. Supreme he remarks that Marshall "dominated the Court Court Appellate Jurisdiction," 1990 Journal of by the sheer force of personality" (59), and the Supreme Court History 125, argues that Jeffersonians certainly resented the sway he Jefferson would not have appointed Roane. Fo­ seemed to exert over his colleagues, and in par­ cusing on the role Roane did play, Olken exam­ ticular his abolition of seriatim opinions. Rob­ ines the personal, political, economic, and legal ert G. Seddig looks closely at this issue in "John components of his continuing battle with Marshall and the Origins of Supreme Court BIBLIOGRAPIDC ESSAY 145

Leadership," 1991 Journal of Supreme Court ions, a practice adopted by new appointees if History 63. Seddig affirms that Marshall had not the continuing members of the Court. a great impact not only on the content of con­ Donald M. Roper contends that Marshall paid stitutionallaw but on the institutional develop­ a price for unanimity. Marshall did not im­ ment of the Court, and he explores Marshall's pose his views on the Court, Roper argues in achievement in bringing unity to that body, "Judicial Unanimity and the Marshall Court­ chiefly through the initiation of the opinion of A Road to Reappraisal," 9 American Journal the Court (which he most often wrote himself). of Legal Hist01Y ] 18 (1965); he thought una­ Marshall did not bull y his Court but rather pro­ nimity essential for the preservation of judi­ vided effective task and social leadership cial power from congressional attacks and was through most of his tenure, Seddig argues, and willing to compromise his Federalist principles his article relates that leadership to the stature in order to achieve it. William Winslow of the Court and to the substance of the law it Cross key is far more iconoclastic in "John created. A longer version of this article, with Marshall and the Constitution," 23 University more discussion of social psychology and of Chicago Law Review 377 (1956). Crosskey more tabular and graphical data, appears in challenges the Holmes-Beveridge view that 36 University of Pittsburgh Law Review 785 Marshall dominated his Court and imposed (1975). In a lighter vein in "Imagining the Federalist doctrine on its jurispmdence. Fed­ Marshall Court," 1986 Yearbook of the Su­ eralists were for strict constmction and it was preme Court Historical Society 77, G. Ed­ the Jeffersonians who were for loose constmc­ ward White uses the facts of actual issues tion; various Marshall decisions depart from and cases to construct imaginative vignettes the substance of Federalist doctrine as well. of what the personal relationships and collec­ Jeffersonians dominated the Court for most of tive decisionmaking style of the Marshall Court Marshall's tenure and the opinions were of the Justices might have been, In "The Working Life COUlt, not just the Chief Justice, who so wanted of the Marshall Court, 1815-1835," 70 the Court to speak with one voice that he some­ Univertsity of Virginia Law Review 1 (1984), times wrote opinions with which he disagreed. a preliminary version of a chapter from his book Marshall was actually fighting a rearguard, on the Marshall Court, White describes and ultimately losing battJe, against Jeffersonian illustrates the setting of its work and its oper­ principles, Crosskey argues; he was disillu­ ating procedures-by today's standards infor­ sioned and pessimistic in his final years but mal, nonaccountable, and in some respects ethi­ did much to minimize the damage to his prin­ cally unacceptable (in light of the modern view ciples and still deserves to be considered the oflawasjudge-made). Since the orthodox view Great Chief Justice. was that the law contained immutable political principles, and that the Court found the law, Roger Brooke Taney White reminds us, only an opinion of the Court was required. From this perspective, Marshall's It has been the fate of Roger Brooke Taney institution of that custom was not necessarily a to be viewed not simply in his own right, but in sign of his domination. Donald G. Morgan relation to the great Chief Justice who preceded emphasizes in "The Origin of Supreme Court him and the great President who served con­ Dissent," 10 William and Mary Quarterly 2d end of his term on the series 353 (1953), however, that such arguments rernal-KaOle is the fact that could hardly appease Jefferson and his follow­ ers. Morgan argues that Marshall had masked years hinges to an ex­ divisions on the Court, and thus responsibility his opinion in just one for its actions, a fact bitterly resented by oppo­ It is small won­ nents. Upon the prodding of Thomas Jefferson, has been especially Justice William Johnson, who had succumbed changes in the stan­ to Marshall earlier, began to speak out inde­ and his ups pendently in concurring and dissenting opin- and downs are carefully charted in Marvin 146 JOURNAL 1998, VOL. I

Laurence Winitsky, "Roger B. Taney: A Histo­ This second volume, more temperate and less riographical Inquiry," 69 Maryland Historical judgmental than the nrst Haines volume cited Magazine I (1974). earlier, is largely the work of Sherwood, who Samuel Tyler, a friend asked by Taney to completed it after Haines's death. He finds that, write his life, produced a Memoir of Roger with some modifications, the Taney Court es­ Brooke Taney, LLD (Baltimore, MD: John sentially extended the Marshallian themes of Murphy & Co., 1872), an overwrought defense growth of national as against state power, ex­ of the Chief Justice without analysis of his ju­ pansion of federal judicial power, and protec­ dicial work. The volume does contain Taney's tion of property rights, especially corporate. autobiographical sketch of his early years and Taney, however, lacked the political sagacity of his supplement ter-and defense of-his Dred Marshall. Other writers emphasize continuity Scott opinion. The latter document, written in as well. Benjamin F. Wright, The Contract 1858 but apparently never used, dismisses all Clause ofthe Constitution (Cambridge, MA: criticism of the opinion as "perversions and Harvard University Press, 1938), finds that al­ misrepresentations" (607). Bernard C. Steiner's though Marshall imbued the Contract Clause Life of Roger Brooke Taney (Baltimore, MD: with far more of Hamilton's desire to protect Willianls & Wilkins, 1922; reprint, Westport, CT: property than the Framers anticipated, Taney's Greenwood Press, 1970), is a more balanced principles were close to Marshall's. Charles work. Taney was profoundly wrong in Dred River Bridge v. Warren Bridge, 36 U.S. (11 Scott, Steiner concludes, but was "a great judge Pet.) 420 (1837), is the only case which comes and a good man" (542). Walker Lewis, Without close to being an exception, and its influence Fear or Favor: A Biography of Chief Justice was not felt until after Taney's death. Taney's Roger Brooke Taney (Boston: Houghton decisions are properly viewed as a "consolida­ Mifflin, 1965), is a narrative account of Taney's tion and application" of his predecessor's doc­ life, admiring of his personal qualities, which trine in this area (63). A closer focus on the takes the view that the Dred Scott opinion was Charles River Bridge case is available in a sincere but misguided aberration that should Stanley 1. Kutler, Privilege and Creative De­ not undermine our appreciation of his great­ struction: The Charles River Bridge Case ness. The standard biography is still Carl Brent (Philadelphia: J.B. Lippincott, 1971). Writing Swisher, Roger B. Thoey (New York: Macmillan, on The Commerce Clause Under Marshall, 1935), sympathetic to the man, which sees Taney, and Waite (Chapel Hill: University of Taney in Dred Scott as seeking to preserve NorthCarolina Press, 1937), Justice Felix Frank­ southern culture and independence, and not furter notes that, through the period of Chief slavery-although that might well be the Justice Waite, the Commerce Clause was im­ byproduct-from northern encroachment. portant as a limitation on state incursions on Swisher is also the author of the most com­ national policy, rather than as an instrument for prehensive history of the Court under Taney. furthering commerce on a national scale. In the The Taney Period: 1836-64 (New York: task of adjusting the federal balance, Taney did Macmillan, 1964), a volume in the The Oliver not simply oppose states' rights views to Wendell Holmes Devise History of the Su­ Marshall's nationalism, Frankfurter finds, and preme Court of the United States, is an ex­ he is "second only to Marshall in the constitu­ haustive account in which Swisher finds the tional history of our country" (73). This ap­ Taney Court to be much the same as the pearance of continuity may be deceptive, ar­ Marshall Court-but far less philosophical and gues Gerald Garvey in "The Constitutional lower in prestige, primarily because it was Revolution of 1837 and the Myth of Marshall's caught up in sectional conflict. An earlier his­ Monolith," 18 Western Political Quarterly 27 tory is Charles Grove Haines and Foster H. (1965). Garvey addresses the disagreement Sherwood, The Role of the Supreme Court in over whether Taney significantly departed from American Government and Politics, 1835- the jurisprudence of Marshall in three impor­ 1864 (Berkeley: University of Cali fomi a Press, tant cases in 1837: Charles River Bridge. 1957; reprint, New York: Da Capo Press, 1973). Briscoe v. Bank ofKentucky, 36 U.S. (11 Pet.) BffiLIOGRAPlllC ESSAY 147

257, and Mayor of New York v. Miln, 36 U.S. old, Boudin argues, and interpretations that (11 Pet.) 102). It is not simply a question of would enable rather than cripple government. whether stare decisis or the force of new so­ In "Roger Brooke Taney: Chief Justice of the cioeconomic conditions prevailed in these de­ Supreme Court of the United States (1836-1864), cisions, for Taney found inconsistencies in 24 Georgetown Law Journal 809 (1936), Will­ Marshall's pronouncements on the key issues. iam L. Ransom argues that Taney saw a need Taney was thus able to have it both ways, for states to control corporate power in order Garvey argues, adhering to the letter of to prevent the reverse; he was not opposed to Marshall's law but giving it new meaning. the national commerce power but more con­ On the whole, however, commentators see cerned with upholding state power touching more similarities than differences. Ben W. Palmer, commerce in an era when national power was Marshall and Taney: Statesmen of the Law not aggressively exercised. On the other great (Minneapolis: University of Minnesota Press, issue of his time, Taney upheld both national 1939), sees the two as not so far apart on the and state power to protect the institution of great issues of federalism and property, and slavery. The Dred Scott decision was histori­ each as in accord with the needs of his own cally and legally sound, but overreaching, Ran­ time-though it is hard to say that about Dred som concludes; Taney was a man of his time, Scott. Louis B. Boudin's "John Marshall and not a molder of the future. R. Kent Newmyer's Roger B. Taney," 24 Georgetown Law Journal The Supreme Court Under Marshall and Thney 864 (1936), draws creative and at times uncon­ (New York: Thomas Y. Crowell, 1968), explores ventional parallels and contrasts between the the impact of judicial statesmanship on the two Chief Justices. Marshall was great to the American experience. The Marshall Court was extent that his support of nationalism offset his more in tune with the values that have en­ protection of vested rights; Taney was not so dured-nationalism and capitalism-and was different, though somewhat inconsistent in his instrumental in securing them, Newmyer con­ nationalism. Taney favored the new over the cludes, whereas the Taney Court bucked the tide

Loyal Unionists in Baltimore guarded the office of the city's provost marshal against the mob. The military arrested citizens suspected of treason, including promjnent BaItimorian John Merryman. In a letter to the President that Chief Justice Taney wrote concerning Merryman, he challenged Lincoln's right to take legislative and judicial power and called on him to uphold the law and the courts. 148 JOURNAL 1998, VOL. I of history with its position on slavery. It did siders Taney to have been personally opposed not challenge but adapted the Marshall Court's to slavery). In "Chief Justice Taney: Prophet of doctrines, however, and the two courts were Reform and Reaction," 10 Vanderbilt LIlw Re­ more alike than different. Together, Newmyer view 227 (1957), RobertI Harris reviews Taney's argues, they established the procedures and tra­ jurisprudence and major rulings and finds that ditions of a flexible and pragmatic constitution­ he was, paradoxically, a spokesman for reform alism. in fostering active use of state police power Those who view Taney as a man of his own (which laid the foundations of the welfare state), time invoke the era of Jacksonian democracy. and for reaction in facilitating dual sovereignty, Wallace Mendelson, "Chief Justice Taney­ reading the foundations of substantive due Jacksonian Judge," 12 University ofPittsburgh process into the Due Process Clause, and pro­ LIlw Review 381 (1951), characterizes Jackso­ tecting slavery. He would not, however, have nian values as popular self-government, nega­ approved of all the subsequent uses of his tion of governmentaJly created privilege for the ideas. Constitutional law since 1937, Harris as­ economic elite and substitution of laissez-faire serts, may be viewed as a blend of Marshall's as egalitarian individualism, and preservation views on national power and Taney's views on of the Union and national sovereignty (with social legislation. A different view of Taney as stress on local self-government). The Taney an intermediary between Marshall and the mod­ Court furthered these interests but not radical em era is offered by Robert Meister in "The agrarianism, protecting the business climate Logic and Legacy of Dred Scott: Marshall, and upholding national power. It was for legis­ Taney, and the Sublimation of Republican latures' rights rather than states" rights, Thought," 3 Studies in American Political Mendelson argues, and even Dred Scott was Development 199 (1989). While abhorring the really an attempt to legitimate popular sover­ Dred Scott decision itself, Meister, in a sophis­ eignty. Charles W. Smith, Jr., Roger B. Taney: ticated argument, maintains that Taney's juris­ Jacksonian Jurist (Chapel Hill: University of prudence is a crucial link between that of North Carolina Press, 1936), is a useful study of Marshall and that of the Fourteenth Amend­ Taney's jurisprudence, which Smith finds is ment, with respect to the intersection of private based on the key principles of democracy, the and public law and the issue of minority politi­ sovereign power of the state, and individual cal identities in a context of federalism. liberty. Dred Scott, Smith maintains, was cor­ In his own time, Taney's stands on those rect in its determination of "sovereign will as issues collided with those of Abraham Lincoln, written into the Constitution" but nevertheless who thought the Court should overrule its de­ "a blunder in statecraft" (155). Taney appar­ cision in Dred Scott. Joseph C. Long, "Ex Parte ently chose the greater of two evils. Merrymnn: The Showdown Between Two Great Even so, many commentators emphasize his Antagonists: Lincoln and Taney," 14 South pragmatism. Writing at the height of the con­ Dakota LIlw Review 207 (1969), argues that flict between the Hughes Court and the Taney valued protection of constitutional guar­ Roosevelt Administration, Dean G. Atcheson antees more than preservation of the union, in "Roger Brooke Taney: Notes upon Judicial whereas Lincoln did just the opposite. Lincoln Self Restraint," 31 Illinois LIlw Review 705 would preserve the union at all costs, but for (1937), praised Taney's pragmatic approach to Taney some costs-such as coercive govern­ applying grand principles in practice as just ment-were too high. Long shows how this what the country needed. The one glaring ex­ value conflict played out in Ex Parte Merryman, ception to Taney's self-restraint, he noted, was 17 Fed.Ca~. 144, No. 9,487 (CC Md. 1861), and Dred Scott. Edwin Borchard, "Taney's Influ­ other Civil War cases. Sitting in Circuit Court, ence on Constitutional Law," 24 Georgetown Taney in Merryman denied the President's LIlw Journal 848 (1936), also views Taney as a power to suspend the writ of habeas corpus, pragmatist. Borchard agrees with Ransom that an opinion Lincoln ignored. Long praises the Dred Scott decision was historically and Taney's Merryman decision as the only in­ legally sound, but overreaching (and he con- stance in our history where the judiciary has BIBLIOGRAPHIC ESSAY 149 taken such a stand in wartime. In "Lincoln and of ten precepts of slavery jurisprudence culled Taney: A Study in Constitutional Polarization," from antebellum statutes and appellate opin­ 15 American Journal of Legal History 199 ions. These views were, he concludes, no doubt (1971), Robert M. Spector notes that Lincoln is those of the vast majority of whites in 1857. remembered as the champion of human rights, A good concise source on the Dred Scott and Taney as the bigot, because of Dred Scott. case is Stanley l. Kutler, ed., The Dred Scott But the Merryman case is another matter, Decision: Law or Politics? (Boston: Houghton Spector argues; Taney saw not the deified Lin­ Mifflin, 1967). Kutler sets the case in historical coln of modem understanding but a danger­ and political context and provides selections ous threat, employing military power unilater­ from the opinions in the case, from contempo­ ally to trample civil liberties. Lincoln would ulti­ rary editorial, political, and legal commentary, mately appoint Salmon P. Chase to succeed and from evolving historical intepretations. The Taney as Chief Justice, but before that he ap­ exhaustive and definitive work on the case is pointed four other Justices to the Taney Court. Don E. Fehrenbacher, The Dred Scott Case: Its David M. Silver, Lincoln~s Supreme Court (Ur­ Significance in American Law and Politics bana: University of Illinois Press, 1956), as­ (New York: Oxford University Press, 1978), which sesses the changing Court under Lincoln; see delves deeply into its historical context and also Brian McGinty, "War in the Court," 19(5) consequences, and into the complexity of the Civil War Times Illustrated 22 (1980). proceedings and judicial opinions. "Taney's Taney's confrontation with Lincoln was the opinion, carefully read," Fehrenbacher con­ culmination of a long course oflegaJ and politi­ cludes, "proves to be a work of unmitigated cal developments, which are recounted in David partisanship, polemical in spirit thoughjudiciaJ M. Potter, The Impending Crisis, 1848-1861 in its language, and more like an ultimatum than (New York: Harper & Row, 1976), completed and a fomrula for sectional accommodation" (3). In edited by Don E. Fehrenbacher. The Dred Scott his article "Roger B. Taney and the Sectional decision was a catalytic and pOlarizing event, Crisis," 43 Journal of Southern History 555 but William M. Wiecek, "Slavery and Abolition (1977), Fehrenbacher evokes Taney's passion­ Before the United States Supreme Court, 1820- ate, visceral attachment to the Southern way of 1860," 65 Journal ofAmerican HistOlY 34 (1978), life to explain the Dred Scott opinion, "a dis­ argues that the decision, though disastrous, creditable intellectual performance by an up­ was neither sudden nor aberrational, but rather right man" (565). Carl Brent Swisher, as we have the culmination of two decades of seen earlier, also attributes Taney's opinion to decisionmaking by the Taney Court. We have his devotion to the South, but John R. already noted three other scholars who take Schmidhauser qualifies that interpretation in that view, which owes much to an early article "Judicial Behavior and the Sectional Crisis of by the eminent Edward S. Corwin, who in "The 1837-1860," 23 Journal ofPolitics 615 (1961). Dred Scott Decision, in the Light of Contem­ Schmidhauser's scalogram analysis of Supreme porary Legal Doctrines," 17 American Histori­ Court voting behavior in sectionally divisive cal Review 52 (1911), argued that much of cases, 1837-1860, reveals that while four other Taney's decision was legally defensible but Southern Democratic Justices had strongly pro­ nevertheless "a gross abuse of trust" (68). Southern voting records, Taney and John Taney's premise of the inferiority of blacks was, McKinley did not, falling into Schmid hauser's moreover, unexceptional at the time, concedes neutral category. Schmidhauser believes that A. Leon Higginbotham, Jr., in "The Ten Pre­ Taney was personally consistently pro-South­ cepts of American Slavery Jurisprudence: Chief ern, but that his sense of institutional respon­ Justice Roger Taney's Defense and Justice sibility led him to moderate his judicial behav­ Thurgood Marshall's Condemnation of the Pre­ ior (as seen also in his assignment of opinions cept of Black Inferiority," 17 Cardozo Law Re­ in divisive cases). view 1695 (19%). Higginbotham, a distinguished The Dred Scott decision remains at the cen­ jurist and commentator on race, law, and poli­ ter of a continuing controversy over whether tics, analyzes the Dred Scott opinion in terms or not Roger Brooke Taney deserves to be con- 150 JOURNAL 1998, VOL. I sidered a great Chief Justice, and we have al­ sions outside of the sectional issue generally ready noted the views of several commenta­ "sensible." (51). But Dred Scott is rightly re­ tors. Charles Evans Hughes gave consider­ garded as a great blot on the record of the Court able impetus to a campaign to rehabilitate and its Chief, Stern concludes, and even out­ Taney's reputation in an address at the unveil­ side the issue of sectional conflict, Taney was ing of a bust of Taney in Frederick, Maryland, "an able but not a great Chief Justice" (52). published as "Roger Brooke Taney," 17 Ameri­ Harold M. Hyman and William M. Wiecek do can Bar Association Journal 785 (1931). In his not merely weigh Taney's views on slavery address, the Chief Justice praised Taney's po­ against his positions in other areas, but see the sitions in many areas-state and national power, former as undermining the latter. In Equal Jus­ economic development, political questions, and tice Under Law: Constitutional Development civil liberties in wartime. Dred Scott was a 1835-1875 (New York: Harper and Row, 1982), sincere but foolhardy attempt to do what only they find that the Taney Court carefully modi­ war could accomplish; it damaged the Court fied Marshall Court doctrines to balance state but not the law. Ableman v. Booth, 62 U.S. (21 police power against corporate power and prop­ How.) 506 (1859), which upheld federal judicial erty rights, but that its commerce power deci­ power to enforce national supremacy (by en­ sions were muddled because of the issue of forcing the Fugitive Slave Law) was Taney's slavery. Taney's Dred Scott opinion exempli­ greatest opinion. All in all, Hughes concluded, fies an "error-ridden dogmatism" (190) that was "he was a great Chief Justice" (790). Hughes' his tragic flaw. "[TJhe intensity of his devotion effort was seconded a year later by Monroe to the welfare of slavery forced lapses in his Johnson's "Roger B. Taney: A Reappraisal," judgment, aberrations of an otherwise sure in­ 66 United States Law Review 487 (1932). stinct for constitutional statesmanship. Roger Taney's words in Dred Scott were distorted so Taney, not his abolitionist contemnors, was his as to ascribe to him an attitude toward blacks own worst enemy" (85). that he did not personally hold, Johnson main­ tains, and his stand against nullification in Melville Weston Fuller Ableman v. Booth only earned him further ob­ loquy, but he persevered, as in the Merryman Melville Weston Fuller has his admirers and case. More recently, the attack on Taney has detractors as well, but the disagreements are resumed. In "'Hooted Down the Pagers] of not about greatness. In reviewing Fuller's sig­ History: Reconsidering the Greatness of Chief nificant judicial opinions, Robert P. Reeder, JusticeTaney," 1994JournalofSupreme Court "Chief Justice Fuller," 59 University of Pelm­ History 83, Paul Finkelman charts the continu­ sylvania Law Review 1 (1910), notes that he ing rise and fall of Taney's reputation among seldom wrote for the Court in constitutional historians and concedes the considerable merit cases. Scholarship tends to focus on the Fuller of his positions on state and federal regulation Court rather than on its Chief, and sometimes of economic activity. The notion that Dred Scott even then without much enthusiasm. In "The was an aberration, however, is simply wrong; it Constitution in the Supreme Court: Full Faith is merely the most unrestrained example of and the Bill of Rights, 1889-1910," 52 Univer­ Taney's efforts, in cases both before and after, sity ofChicago Law Review 867 (1985), David to protect slavery and support the Confederacy. P. Currie dutifully reviews Fuller Court cases Taney's support of racism and slavery, involving the Full Faith and Credit Clause and Finkelman argues, must weigh more heavily in the Bill of Rights but reserves his most pun­ the balance of historical judgment than his cre­ gent writing for profiles of the Justices, most of ativity in the field of economic regulation. Rob­ whom he finds unimpressive. "[I]n terms of ert L. Stem refuses to concede even that much. " Currie laments, "the Fuller period In "Chief Justice Taney and the Shadow of Dred was a drab time in the history of the Court" Scott," 1992 Journal of Supreme Court His­ (897). We should note, however, (and Currie tory 39, he finds the Taney Court "essentially does) that Justices Samuel F. Miller, Stephen J. pragmatic and unphilosophical," and its deci- Field, Joseph P. Bradley, John Marshall Harlan BIBLIOGRAPIDC ESSAY 151

I, Horace Gray, Edward Douglass White, and Carolina Press, 1995). Ely's revisionism goes Oliver Wendell Holmes, Jr., served at least some further than that of Fiss. Writing in the vein of time on the Fuller Court; Currie's disdain is re­ recent scholarship, which rejects the older view served for the other twelve. of the turn-of-the-century Court as a mere pro­ For a long period, the only serious book on ponent of Social Darwinism and laissez-faire, Fuller was Willard L. King, Melville Weston Ely sees Fuller as skillfully guiding it through a Fuller: Chief Justice of the United States, period of profound transition. Although politi­ 1888-1910 (New York: Macmillan, 1950; reis­ cal and economic conservatives devoted to sue, Chicago: University of Chicago Press, property rights, limited government, and state 1967). This first biography of Fuller is admir­ autonomy-the dominant values of their time­ ing; it acknowledges that his strength was char­ Fuller and his like-minded colleagues upheld acter rather than intellect and praises his per­ most of the regulatory legislation brought be­ sonal qualities and administrative ability. King fore them. The Fuller Court, Ely argues, accom­ provides a careful narrative of events, espe­ modated the needs of both the emerging in­ ciaJly those of Pollock v. Farmers 'Loan & Trust dustrial society and the emerging administra­ Co., 157 U.S. 429 and 158 U.S. 601 (1895), but tive state, propelling the Court into its modem does not analyze Fuller's jurisprudence. Fuller's role in the process. In 'The Constitution in the talent as an administrator is his most generaHy Supreme Court: The Protection of Econornic recognized attribute. Arthur W. Spencer, ed., Interests, 1889-1910," 52 University ofChicago "Judge Putnam's Recollections of Chief Jus­ Law Review 324 (1985), David P. Currie sees tice Fuller," 22 Green Bag 526 (1910), recounts not balancing but inconsistency. Currie gives the testimony of Judge William L. Putnam, the Fuller Court a mixed review, finding that it Fuller's lifelong, intimate friend. Putnam pro­ was not generally hostile to governmental au­ vides a sketch of his early life and character thority, construing it both broadly and narrowly and quotes from a letter from Justice Holmes, to protect economic interests. Most state regu­ who pronounced Fuller's performance as leader lations of business were in fact upheld, and the of the Court to have been extraordinary. protection of the Contract Clause was signifi­ Two important studies of the Fuller Court cantly curtailed. "The economic decisions of have recently appeared. Owen M. Fiss, the Fuller years," Currie observes, "were not Troubled Beginnings of the Modern State, characterized by great respect for precedent 1888-1910 (New York: Macmillan, 1993), a . . . [or by] a meticulous concern for persua­ volume in The Oliver Wendell Holmes Devise sive reasoning" (387-88). Like Ely, Jeffrey B. History of the Supreme Court of the United Morris sees the Court as adapting, but he notes States, is an interpretive study that rejects the only interim success. In "The Era of Melville older view of the Fuller Court as simply a pro­ Weston Fuller," 1981 Yearbook ofthe Supreme tector of the interests of the propertied class. It Court Historical Society Morris character­ was not defending class interests but defend­ izes the Fuller era, provides brief profiles of the ing liberty-defined almost entirely in terms of members of the Court, and praises the Chief limited government-against the social move­ Justice as a presiding officer and judicial ad­ ments of its day. The Court was not, however, ministrator. In fields such as govemmental regu­ solicitous of liberty for Chinese, blacks, or lation of the economy and race relations, Mor­ women, Fiss notes. It was not solicitous of ris concludes, the Court responded to new equality, either, as indicated by its opinion in forces, adapted to a new role focusing on pub­ Plessy v. Ferguson, 163 U.S. 537 (1896). Charles lic law, and was not out of line with the political A. Lofgren, The Plessy Case: A Legal-Histori­ branches-but made decisions that would need cal Interpretation (New York: Oxford Univer­ to be reversed. sity Press, 1987), is a masterful account of this The Fuller Court is best known for the de­ major civil rights case of the Fuller Court. The velopment of economic substantive due pro­ second major recent work is James W. Ely, Jr., cess, and the case that has long been the pivot The Chief Justiceship of Melville W. Fuller, of interpretation is Lochner v. New York, 198 1888-1910 (Columbia: University of South U.S. 45 (1905). The traditional view of the rise 152 JOURNAL 1998, VOL. I of substantive due process is presented in tradictory positions of many interests that fa­ works such as Benjamin R. Twiss, Lawyers and vored governmental promotion of business but the Constitution: How Laissez Faire Came to opposed governmental regulation; it ultimately the Supreme Court (PIinceton, NJ: PIinceton failed not because it was one-sided in its own University Press, 1942), and Arnold M. Paul, time, but because it was not adaptable to rap­ Conservative Crisis and the Ru1e of Law: Atti­ idly changing socioeconomic conditions. tudes of Bar and Bench, 1887-1895 (Ithaca, McCurdy's "The Roots of 'Liberty of Contract' NY: Cornell University Press for the AmeIican Reconsidered: Major Premises in the Law of HistoIical Association, 1960). Twiss examines Employment, 1867-1937," 1984 Yearbook ofthe the role of leading lawyers, representing busi­ Supreme Court Historical Society 20, finds a ness clients, in metamorphosing the ideology distinction between the status of legislation of laissez-faire into legal terms and constitu­ designed to protect public health and safety tional doctIines which receptive judges turned and that designed to enhance the bargaining into the law of the land; Paul argues that in the position of workers. Howard Gillman makes a 1890s the judiciary revolutionized AmeIican similar point in The Com;titution Besieged: The constitutionalism with a massive intervention Rise and Demise of Lochner Era Police Pow­ in policy making on behalf of property rights ers Jurisprudence (Durham, NC: Duke Univer­ and social order. Richard C. Cortner, The Iron sity Press, 1993), arguing that from the found­ Horse and the Constitution: The Railroads and ing there was a constitutional tradition that per­ the Transformation ofthe Fourteenth Amend­ mitted general welfare legislation but prohib­ ment (Westport, CT: Greenwood Press, 1993), ited class or special interest legislation. provides further background on substantive Lochner-erajudges were not simply wIiting re­ due process, and James W. Ely, Jr., "The Fuller actionary policy preferences into the law, Court and Takings Jurisprudence," 1996 Jour­ Gillman maintains, but still operating in that tra­ nal of Supreme Court History, vol. 2, 120, ar­ dition at a time when changing socioeconomic gues that the Fuller Court.'s support of eco­ conditions made it no longer neutral but in fact nomic liberty rested not only on its interpreta­ biased towards the affluent class. Mary tion of the Due Process Clause but also on its Cornelia Porter, 'That Commerce Shall Be Free: more enduring application of the Takings A New Look at the Old Laissez-Faire Court," Clause. Paul Kens, in Judicial Power and Re­ 1976 Supreme Court Review 135, is an early form Politics: The Anatomy of Lochner v. New argument that decisions in the late nineteenth York (Lawrence: University Press of Kansas, and early twentieth centuIies were far from uni­ 1990), has produced a detailed study of the fa­ fomuy pro-business and anti-regulatory; where mous case, including an assessment of con­ the Court used substantive due process against ditions in the baking industry-which the the states it was to achieve uniform national Court presumed to understand-the labor commercial rules indispensable for investment reform movement, the ideology and politics of and economic growth. Melvin I. Urofsky, the era, the constitutional doctrines of the de­ "Myth and Reality: The Supreme Court and cision, and their repudiation and contemporary Protective Legislation in the Progressive Era," reappearance. 1983 Yearbook of the Supreme Court Histori­ There is now a considerable body of revi­ cal Society 53, provides further evidence that sionist scholarship on the Lochner era. An Lochner and a relatively small number of like early example is Charles W. McCurdy, "Justice cases were not typical of Supreme Court Field and the JuIisprudence of Government­ decisionmaking in the Progressive Era, and that Business Relations: Some Parameters of the Court generally upheld exercises of the po­ Laissez-Faire Constitutionalism, 1863-1897," 61 lice power to protect the interests of workers. Journal ofAmerican History 970 (1975). The Michael Les Benedict's "Laissez-Faire and Lib­ juIisprudence of substantive due process was erty: ARe-Evaluation of the Meaning and Ori­ not merel y orthodox Social Darwinism invoked gins of Laissez-Faire Constitutionalism," 3 Law on behalf of the Iich, McCurdy argues, but a and History Review 293 (1985), has also been coherent attempt to balance the internally con- influential, and Mary Cornelia Porter takes stock BIBLIOGRAPIDC ESSAY 153

guardlanofliberty and property, as well as judicial responsiveness to the needs of Progressive groups. in "Lochner and Company: Revisionism Revis­ sive tradition in "The Supreme Court, the Popu­ ited," in Liberty, Property, and Government: list Movement, and the Campaign of 1896," 15 Constitutional Interpretation Before the New Journal ofPolitics 3 (1953), where he recounts Deal, Ellen Frankel Paul and Howard Dickman, populist opposition to conservative decisions eds. (Albany: State University of New York as a campaign issue in 1896. Taking a much Press, 1989). Paul Kens has challenged the re­ longer view from a much later vantage point, visionist interpretation in two articles, "Lochner however, William G. Ross in A Muted }'ury: v. New York: Rehabilitated and Revised, but Populists, Progressives, and Labor Unions Still Reviled," 1995 Journal ofSupreme Court Confront the Courts, 1890-1937 (Princeton, HistOty 31, and "The Source of a Myth: Police NJ: Princeton University Press, 1994), sees sev­ Powers of the States and Laissez Faire Consti­ eral factors muting the militancy of these groups tutionalism, 1900-1937," 35 American Journal in opposition to the judiciary, including wide ofLegal History 70 (1991). Many regulations respect for the judicial role as guardian of lib­ may have been upheld, Kens argues, but the erty and property, but also judicial responsive­ Court held to the principle that the state's power ness to their needs. to intervene in economic and social affairs was In a contemporary assessment, William E. narrowly limited, and the legislation that passed Walz, "Chief Justice Fuller, the Individualist on muster had to be on its terms. the Bench," 10 Maine Law Review 77 (1917), Alan Furman Westin writes in the progres- found Fuller's defining characteristic to be his 154 JOURNAL 1998, VOL. I belief in individualism. The popular sovereignty mately in the interest of the working class. In of free individuals, Walz concludes, was of "The Labor Decisions of Chief Justice Taft," 78 higher value to Fuller than national sovereignty. University of Pennsylvania Law Review 585 Without pausing to consider the logical prob­ ( 1930), Alpheus T. Mason in a sympathetic ac­ lems inherent in such a formuJation, we may count credits Taft-as state and lower federal note that it was in the economic field that the judge, President, private citizen, and Chief Jus­ free play of individualism was most highly tice-with having more influence on the shap­ touted, on the basis of a firm belief in the sanc­ ing of labor law than anyone else. While ac­ tity of the free market. Stephen A. Siegel thus knowledging that Taft's decisions almost al­ provides a key to understanding the fate of the ways went against labor, Mason sees his ap­ Fuller Court in "U nderstanding the Lochner Era: proach as evenhanded, recognizing labor rights Lessons from the Controversy over Railroad but guarding against legitimate labor evils. and Utility Rate Regulation," 70 Virginia Law Stanley I. Kutler adopts a similar view in two Review 187 (1984), where he shows how the articles. In "Labor, the Clayton Act, and the legal doctrines devised with reference to a free Supreme Court," 3 Labor History 19 (1962), he market became less and less workable as the acknowledges that the Taft Court would not nature of that market changed. construe the Clayton Act to favor the interests of labor, but notes that the statute was surely William Howard Taft ambiguous. Kutler also shows in "Chief Jus­ tice Taft, Judicial Unanimity, and Labor: The Whatever their prospects in the longer run, Coronado Case, 24 Historian 68 (1961), that Fuller's principles were alive and well in the not only Brandeis but Taft induced a majority social philosophy of William Howard Taft. In of the Court to give organized labor some relief Liberty Under Law: An Interpretation of the from application of the Sherman Antitrust Act Principles of Our Constitutional Government to strikes, in United Mine Workers v. Coronado (New Haven, CT: Yale University Press, 1922), Coal Co. , 259 U.S. 344 (1922), and Coronado Taft expressed his faith in individualism, skep­ Coal Co. v. United Mine Workers, 268 U.S. 295 ticism of too much democracy, and belief in a (1925). limited venue for governmental action on be­ The standard biography ofTaft is still Henry half of the community. Much earlier, in "The F. Pringle, The Life and Times of William Right of Private Property," 3 Michigan Law Howard Taft, 2 vol. (New York: Farrar & Rinehart, Journal 215 (1894), Taft had even more force­ 1939). Based on unrestricted access to Taft's fully extolled the heritage of liberty and prop­ voluminous papers, this "authorized but not erty, sacred and coequal values that must be official" (I, vii) account focuses on Taft's char­ protected against "the gusty and unthinking acter and personality-outwardly jolly but of­ passions of temporary majorities" (218). The ten tortured. His opinions in a few major cases profit motive is what spurs the development of are described but not subjected to close legal civilization, and the regulatory attack on cor­ analysis. Taft's troubled psyche is probed more porate capital is a threat to the social fabric. deeply by Judith Icke Anderson in William The resort of the wealthy to the courts for pro­ Howard Taft: An Intimate History (New York: tection of these constitutional rights against W.W. Norton, 1981). Anderson covers Taft's the depredations of the sovereign majority is life only through his presidency but builds on "an appeal by the weak against the unjust ag­ Pringle's insights by focusing on his "complex gression of the strong" (232). The spectre for psychological make-up and intimate personal Taft was that of socialism, and he expressed history" (14) to shed new light on his person­ misgivings about labor unions as well. He de­ ality and behavior. Paolo E. Coletta has written tected a slackening of resolve to protect the The Presidency of William Howard Taft rights of liberty and property against the claims (Lawrence: University Press of Kansas, 1973) of those who do manual labor, and he argued and also compiled William Howard Taft: A Bib­ that shortsighted union leaders fail to under­ liography (Westport, Cf: Meckler, 1989), a com­ stand that protection of property rights is ulti- pilation of works by and about Taft that em- BIBLIOGRAPIDC ESSAY 155 phasizes his presidency but also has material rect-judicial decision making depended on on his chief justiceship and personal charac­ having the right judges on the bench. Alexander teristics. M. Bickel, "Mr. Taft Rehabilitates the Court," Taft is widely praised as an able administra­ 79 Yale Law Journal 1 (1969) discusses Presi­ tor and effective proponent of judicial reform, dent Taft's Supreme Court appointments, and and he was in his element playing those roles Walter F. Murphy's "In His Own Image: Mr. as Chief Justice. Jeffrey B. Morris's, "What Chief Justice Taft and Supreme Court Appoint­ Heaven Must Be Like: William Howard Taft as ments," 1961 Supreme Court Review 159, re­ Chief Justice, 1921-30," 1983 Yearbook of the counts Chief Justice Taft's active role in influ­ Supreme Court Historical Society 80, focuses encing nominations to his Court as vacancies on Taft as judicial administrator, including his occurred. attempts to mass the Court in favor of conser­ In his survey of the constitutional decisions vative outcomes. In "Chief Justice Taft and the of the Taft years, "The Constitution in the Su­ Lower Court Bureaucracy: A Study in Judicial preme Court: 1921-1930," 1986 Duke Law Jour­ Administration," 24 Journal of Politics 453 nal 65, David P. Currie finds that the views of (1962), Walter F. Murpby discusses Taft's ef­ the Court were the views of Taft. The Chief forts to promote teamwork in the federal judi­ Justice was in the minority in only a very few ciary-perbaps best described as lower court constitutional cases, he notes, and dissented support of Supreme Court rulings-by work­ only once, in Adkins v. Children's Hospital, ing for judicial reform, especially the creation 261 U.S . 525 (1923). Issues of national power of the Judicial Conference in the Judiciary Act and the federal balance, as well as issues of of 1922, and by attempting to influence judicial libelty and property rights, were central in that appointments. See also Murphy's "Marshal­ era. In "Chief Justice Taft, National Regula­ ing the Court: Leadership, Bargaining, and the tion, and the Commerce Power," 51 Journal of Judicial Process," 29 University of Chicago Law American History 651 (1965), Stanley I. Kutler Review 640 (1962). Before turning to more con­ argues that Taft's broad interpretation of the troversial pursuits, Kenneth W. Starr wrote national commerce power is the one aspect of "William Howard Taft: The Chief Justice as Ju­ his jurisprudence that has endured, and that it dicial Architect," 60 University of Cincinnati provided an important line of precedent for the Law Review 963 (1992), in which he praises constitutional revolution that began in 1937. Taft for providing executive direction to an in­ Robert C. Post's "Chief Justice William Howard efficient and backlogged federal judiciary (in Taft and the Concept of Federalism," 9 Consti­ the process breaking the tradition that the Chief tutional Commentary 199 (1992), rejects the Justice did not lobby Congress). Taft secured simplistic notion of federalism as the issue of passage of the Judges' Bill of 1925, allowing national versus state power. Post elaborates the Supreme Court effective discretion over its four strands of the concept of federalism and docket, whereupon its backlog was eliminated. draws a subtle and complex portrait of Taft and The Supreme Court could focus exclusively on his values in the process. Taft's positions in larger questions, and the Courts of Appeal relation to those of the Four Horsemen on the gained stature as the final authority in a greater one hand and HoLmes and Brandeis on the other number of cases. Taft also secured approval are richly nuanced, Post argues, and his overall for a new Supreme Court building (which he stance of individualistic nationalism is reminis­ never saw) and lobbied for simpler rules of civil cent of- surprise-Justice William 1. Brennan. procedure. Taft explained the reform statute in Stanley I. Kutler wrote another, slightly "The Jurisdiction of the Supreme Court under earlier article on Taft that was less charitable the Act of February 13, 1925," 35 Yale Law Jour­ than the one already noted. In "Chief Justice nal 1 (1925), and Felix Frankfurter and James Taft and the Delusion of Judicial Exactness­ M. Landis provide a contemporary evaluation A Study in Jurisprudence," 48 Virginia Law of his judicial reforms in The Business of the Review 1407 (1962), he argues that in addition Supreme Court (New York: Macmillan, 1927). to his political and economic conservatism, Taft Taft well understood that efficient-and cor- exhibited a jurisprudential posture of belief in 156 JOURNAL 1998, VOL. I

Thft Court (pictured) were the views of William H. Taft. The Chief Justice was in the minority in only a very few constitutional cases, Currie notes, and dissented only once, in Adkins v. Children's Hospital. Standing from left to right are Pierce Butler, Louis D. Brandeis, George Sutherland, and Edward Sanford. Sitting from left to right are Pierce Butler, Joseph McKenna, Chief Justice Taft, Oliver Wendell Holmes, Jr., and James C. McReynolds. the received Jaw and a search for logical con­ Taft, however, that he wrote instead the most sistency and certitude as a barrier against important study of his tenure on the Court: chaos. Thus he eschewed novelty in the law William Howard Thft: Chief Justice (New York: and sought to eliminate vagueness with pre­ Simon and Schuster, 1965; reprint, Lanham, MD: cise and enduring formulations. The static ap­ University Press of America, 1983), followed a proach was doomed, Kutler concludes; Taft year later by "Chief Justice Taft at the Helm," created little that has survived and, ironically, 18 Vanderbilt Law Review 367 (1965). In the his most notable influence on the law may be book, a topical rather than narrative examina­ his dissent in Adkins v. Children's Hospital. tion of the Taft chief justiceship, Mason pur­ Alpheus Thomas Mason provides much sues the connection between Taft the Social useful information about Taft, and about his Darwinist opponent of social democracy and successor, Hughes, in his masterful biography Taft the zealous proponent of judicial reform, Harlan Fiske Stone: Pillar of the Law (New finding it in the proposition that an efficient York: Viking Press, 1956; reprint, Hamden, CT: and fair system of justice could make social Archon Books, 1968). Mason next planned a reform both less justified and less likely. Taft synthesizing work on the office and powers of was thus highly effective but fatally short­ the Chief Justice, comparable to the volume on sighted. Expanding on this theme in "Presi­ the presidential office by his predecessor as dent by Chance, Chief Justice by Choice," 55 McCormick Professor of Jurisprudence at American Bar Association Journal 35 (1969), Princeton, Edward S. Corwin. He became so Mason asserts that Taft, wi th Fuller and intrigued with the material he had gathered on Hughes, was one of the three best administra- BIBLIOGRAPIDC ESSAY 157 tors among Chief Justices, was a masterful ar­ pers and in fact based his account primarily on chitect and reformer of the judicial system, wrote numerous interviews with Hughes and on ex­ important early civil liberties decisions, and tensive autobiographical notes that he prepared. wrote commerce power decisions that laid the Pusey discusses his relationship with Hughes foundation for the constitutional revolution of and the process of composition in "The Hughes 1937. Only John Marshall rivals him in his ex­ Biography: Some Personal Reflections," 1984 pansive conception and effective use of the Yearbook of the Supreme Court Historical office-yet Taft does not rank among the Society 45. The biography is unabashedly great Chief Justices. Justices must have "the flattering, characterizing Hughes as consis­ ability to weigh realistically the strength of tently brilliant, scrupulous, principled, flexible, the popular will and its claims to prevail." Be­ and statesmanlike. Pusey sees Hughes and his cause of his devotion to laissez-faire and fear opinions in major New Deal cases as the sen­ of social democracy, Mason concludes, Taft sible center between judges who would petrify (and many contemporaries) "did not fully meet the Constitution and politicians who would this test" (39). flout it. Hughes' opinions in commerce power cases were consistent throughout, Pusey main­ Charles Evans Hughes tains, only changing in emphasis as Congress learned to draft legislation that met constitu­ By the time Charles Evans Hughes became tional requirements. Thomas Reed Powell is Chief Justice in 1930, he had already been gov­ highly favorable to the Hughes-Pusey collabo­ ernor of New York, served as an Associate Jus­ ration, to the book, and to Hughes in "Charles tice on the Supreme Court (1910-1916), run for Evans Hughes," 67 Political Science Quarterly President of the United States, been president 161 (1952); for a different perspective see of the American Bar Association, served as Alpheus Thomas Mason, "Charles Evans Secretary of State, served on the Permanent Hughes: An Appeal to the Bar of History," 6 Court of International Justice, and written a Vanderbilt Law Review I (1952). David 1. book about the Supreme Court. The book is Danelski and Joseph S. Tulchin have edited The Supreme Court of the United States: Its the Hughes manuscript in The Autobiographi­ Foundation, Methods, and Achievements: An cal Notes of Charles Evans Hughes (Cam­ Interpretation (New York: Columbia University bridge, MA: Harvard University Press, 1973). Press, 1928; reprint 1966), an explanation of the The understated premise of this volume is that Supreme Court and its accomplishments, in­ Hughes provided a more balanced portrait of tended for the layman. Discussions of Hughes' himself than did Pusey in his gloss on the notes, service as Associate Justice are available in and the editors also contribute their own intro­ Arthur M. Allen, "The Opinions of Mr. Justice duction of more objective praise. Hughes' per­ Hughes," 16 Columbia Law Review 565 (1916), sonal qualities are the focus of an admiring Paul a laudatory account, and in a Note: "Governor A. Freund in "Chief Justice Charles Evans Hughes on the Bench: Charles Evans Hughes Hughes," a section of Richard B. Morris, Paul as Associate Justice," 89 Harvard Law Review A. Freund, and Herbert Wechsler, "Columbians 961 (1976), which argues that the great changes as Chief Justices: John Jay, Charles Evans in the Court that occurred during Hughes' chief Hughes, and Harlan Fiske Stone," 1988 Year­ justiceship were foreshadowed by the earlier book of the Supreme Court Historical Society associate justiceship of the man who had been 66,70. a reform governor of New York. The defining issue for the Hughes Court The standard biography of Hughes is still was its relationship to President Franklin D. Merlo 1. Pusey, Charles Evans Hughes, 2 vol. Roosevelt's New Deal- before, during, and af­ (New York: Macmillan, 1951; reprint, New York: ter the Court-packing crisis of 1937. In The Garland Publishing, 1979). In preparing this Supreme Court Reborn (New York: Oxford authorized biography, most of which deals with University Press, 1995), William E. Leuchtenburg Hughes' life and career prior to the chief jus­ draws on extensive archival research in the pa­ ticeship, Pusey had access to the Hughes pa- pers and diaries of participants to provide an 158 JOURNAL 1998, VOL. I especially rich chronicle of the development of Hughes was not ideologically doctrinaire, the Court-packing plan in preference to many Hendel concludes, he could respond to that alternative strategies, and he also analyzes the need. F. D. G. Ribble, "The Constitutional Doc­ defeat of the plan in Congress and the revolu­ trines of Chief Justice Hughes," 41 Columbia tion in Court decisionmaking that began in 1937. U1W Review 1190(1941), suggests that Hughes' Leuchtenburg writes in a tradition flowing from disinclination to overrule was an aspect of his such works as Edward S. Corwin's Constitu­ concern for consistency, and that in 1937 he tional Revolution, l.td~ (Claremont, CA: may have treated earlier cases gently in order Claremont Colleges, 1941; reprint, Westport, CT: to facilitate Justice Owen J. Roberts' switch­ Greenwood Press, 1977), which see the Hughes the crucial fifth vote. Ribble also praises Court as making major doctrinal shifts starting Hughes' support for such civil liberties as in 1937 and frequently cite political pressure speech and press, which he finds no less strong from President Roosevelt as the explanation. than his support for property rights. Robert L. Much discussion centers on the consistency Stern, "The Court-Packing Plan and the Com­ of Hughes' position through this shift. His merce Clause," 1988 Yearbook ofthe Supreme biographer, as we have seen, finds him true to Court Historical Society 91, finds that Hughes' his principles, upholding later statutes only in claim that his position in commerce power cases response to improved legislative performance; before and after 1937 was consistent, and thus Alpheus Thomas Mason, on the other hand, perhaps not influenced by pressure from FDR, in The Supreme Court: Palladium of Freedom may be credible; Richard D. Friedman, "Switch­ (Ann Arbor: University of Michigan Press, ing Time and Other Thought Experiments: The 1962), argues that Hughes was motivated by Hughes Court and Constitutional Transforma­ expediency in shifting his ground but camou­ tion," 142 University of Pennsylvania Law Re­ flaging the shift to preserve the appearance of view 1891 (1994), is convinced that it is. judicial stability. See also Mason's account of The principal challenge to the traditional the Court-packing episode and unflattering view that the Hughes Court was at first recalci­ portrait of Hughes in The Supreme Court: trant but then shifted ground radically in re­ Vehicle of Revealed Truth or Power Group, sponse to political pressure comes from Barry 1930-1937 (Boston: Boston University Press, Cushman, whose most recent work appears in 1953). Samuel Hendel finds middle ground in this volume. In "Rethinking the New Deal Charles Evans Hughes and the Supreme Court Court," 80 Virginia Law Review 201 (1994), (New York: King's Crown Columbia Uni­ Cushman makes the case that the Court.'s shift versity, 1951), and "The 'Liberalism' of Chief in the areas of substantive due process and the Justice Hughes," 10 Vanderbilt Law Review commerce and tax powers was not simply the 259 (1957). Mason overstates the case in sug­ result of the Court-packing plan or the election gesting that Hughes was basically an extreme of 1936 but was rather the product of factors conservative opposed to democratic pressures internal to the judicial process. The first round for governmental action; on the other hand, of the New Deal battle was characterized by Pusey is disingenuous in claiming that Hughes sloppy draftsmanship of statutes and flawed did not change course in 1937 but simply ac­ selection and argumentation of test cases, knowledged better legislative draftsmanship. whereas the statutes of the second round were Hendel finds Hughes liberal on civil rights and competently drafted and the cases carefully liberties, and moderately conservative on eco­ selected and argued. Further, Cushman asserts nomic and social issues before 1937 but essen­ here and elsewhere that the Justices should be tially liberal thereafter. He concedes Hughes' given credit for deciding cases on the basis of penchant for distinguishing cases where logic an intellectual envirorunent of constitutional called for overruling, finding that Hughes' great doctrines, premises, and prinCiples that they concern for the prestige of the Court and the consciously and conscientiously create, continuity of its pronouncements was chal­ evolve, and modify as required to perform lenged by his recognition of the forces of po­ their judicial function. As an example, litical, economic, and social change. Because Cushman cites Hughes' treatment of the BIBLIOGRAPIDC ESSAY 159 commerce power in "A Stream of Legal Con­ the 'Separate But Equal' Doctrine," 76 Minne­ sciousness: The Current of Commerce Doctrine sota Law Review 1099 (1992), credit Hughes from Swift to Jones & Laughlin," 61 Fordham with having "relatively progressive racial Law Review 105 (1992). For further informa­ views" (11 06) and recount the first steps to­ tion on the Hughes Court and the New Deal, ward racial justice taken by the Court during and on Lochner-era jurisprudence as well, see his tenure. In "The Court of Chief Justice the sources cited in John B. Taylor, "Politics, Hughes: Contributions to Civil Liberties," 12 the Court, and the Constitution: A Bibliographi­ Wayne Law Review 535 (1966), Merle William cal Essay on the Pre- and Post-New Deal Su­ Loper focuses on the First Amendment, equal preme Court," 1997Journal of Supreme Court protection, and criminal procedure and credits History vol. 1,99. the Hughes Court with considerable achieve­ Professor Ribble is not alone in his praise ment, within the bounds of the contemporane­ for Hughes' support for civil liberties; R. Perry ous movement away fromjudicial activism. The Sentell, Jr., "The Opinions of Hughes and Chief Justice imposed coherence on this pro­ Sutherland and the Rights of the Individual," cess even as the Court was rife with dissen­ 15 Vanderbilt Law Review 559 (1962), finds sion, Loper finds, carefully guiding conference Hughes very sensitive to infringements of civil discussion, assigning opinions judiciously, and liberties most of the time, and the economic exerting great influence in the promulgation of conservative Justice George Sutherland not far per curiam opinions, where his discretion was behind. Daniel Hildebrand discerns important apparently virtually unfettered. connections between civil liberties and central Hughes' administrative ability is often issues of economic regulation and national praised. In 'The Business of the Supreme Court power. In "Free Speech and Constitutional as Conducted by Chief Justice Hughes," 63 Transformation," 10 Constitutional Commen­ Harvard Law Review 5 (1949), Edwin McElwain, tary 133 (1993), Hildebrand argues that Chief Hughes' law clerk for three years, provides a Jostice Hughes and Justice Roberts were the descriptive account of his style as a leader in authors of a focus on free speech that became conference and oral argument and recounts his central to democratic government. Two 1931 care in handling informa pauperis cases. Jus­ cases-Near v. Minnesota, 283 U.S. 697 and tice Felix Frankfurter, who served with him for Stromberg v. California, 283 U.S. 359-blazed two Terms, assesses "'The Administrative an early trail for civil liberties and, in mandating Side' of Chief Justice Hughes," at 63 Harvard national judicial control of local repression, an­ Law Review 1 (1949). Frankfurter praises ticipated the comparable nationalism of Na­ Hughes for bringing matters to resolution effi­ tional Labor Relations Board v. Jones & ciently and gracefully, comparing him to the Laughlin Steel Corp., 301 U.S. 1 (1937) and, conductor of an orchestra in guiding Confer­ with Powell v. Alabama, 287 U.S. 45 (1932), the ence discussion and to a general deploying an incorporation of the Bill of Rights, which be­ army in the assignment of opinions. Frank­ gan in systematic fashion in Palko v. Connecti­ furter equates Hughes' performance with cut, 302 U.S. 3 19(1937). Justice Stone's fa­ Holmes' assessment of Fuller, noted earlier. mous Footnote Four in United States v. Stacia L Haynie offers a dissenting view in Carolene Products Co., 304 U.S. 144 (1938), to "Leadership and Consensus on the U.S. Su­ which Hughes contributed, cites all six of the preme COUl1," 54 Journal of Politics 1158 Hughes Court's free speech decisions and, (1992). Although Hughes is routinely praised Hildebrand argues, "is best read as a belated for the quality of his task and social leadership. acknowledgement of continuity between the Haynie argues that the lack of cohesion so recent Commerce Clause cases, the First prominent on the Stone Court really began with Amendment decisions and the protection of the Hughes Court, as reflected in the rise of fundamental liberties provided by Palko" (136). dissenting and, especially, concurring opinions, In the area of civil rights, A. Leon and that Hughes' leadership style was a con­ Higginbotham, Jr. , and William C. Smith, "The tributing factor. Peter G. Fish relates Hughes to Hughes Court and the Beginning of the End of his predecessor rather than to his successor in 160 JOURNAL 1998, VOL. I

"William Howard Taft and Charles Evans and whereas Marshall saw his Court gradually Hughes: Conservative Politicians as Chief Ju­ slip away, Hughes remained at the helm as he dicial Reformers," 1975 Supreme Court Review charted a new course for his. 123. Fish sees both men working to improve administrative efficiency within the judicial sys­ Earl Warren tem to ward off majoritarian influences-Taft to protect property rights from state govem­ John Marshall took office in search of cases mental regulation and Hughes to preserve judi­ that would allow him to put his mark upon the cial independence, especially against national Court and that would allow the Court to put its executive encroachments. The two types of mark upon the nation; Earl Warren took office conservative reform were quite different, Fish with such a case in medias res: Brown v. Board concludes, but both had implications for pub­ ofEducation, 347 U.S. 483 (1954), 349 U.S. 294 lic policy and hence were political. (1955). The result, of course, was one of the Just as John Marshall confronted Thomas most influential Supreme Court decisions ever Jefferson and Roger Brooke Taney confronted rendered, and although President Eisenhower Abraham Lincoln, so Charles Evans Hughes is commonly portrayed as less than enthusias­ confronted Franklin D. Roosevelt. The need in tic about that result, Michael A. Kahn argues 1937 was to accommodate the policy needs of in "Shattering the Myth About President the country without undermining the integrity Eisenhower's Supreme Court Appointments," of the Court. In his broad survey of the impact 22 Presidential Studies Quarterly 47 (1992), of the New Deal on the American legal order, that in appointing Earl Warren (and in making "The Great Depression, the New Deal, and the his four other nominations), Eisenhower in­ American Legal Order," 59 Washington lAw tended to steer the Court toward liberal deci­ Review 723 (1984), Michael E. Parrish credits sions in the area of civil rights. Richard Kluger Hughes with rescuing the power of judicial re­ tells the story of the great case in Simple Jus­ view and emerging as a progressive leader with tice: The History of Brown v. Board ofEduca­ his reputation and integrity intact (even though tion and Black America's Struggle for Equal­ he had been an opponent of this course as late ity (New York: A1fred A. Knopf, 1976), and gives as 1936). In his brief biography Charles Evans Warren much credit for achieving the unanim­ Hughes and American Democratic Statesman­ ity that was so important for the moral author­ ship (Boston: Lillie, Brown, 1956), Dexter Perkins ity of the decision. Drawing on the papers of finds Hughes' statesmanship--throughout his Justice Harold H. Burton, S. Sidney Ulmer also career-in his balancing of liberal and conser­ emphasizes Warren's role in securing unanim­ vative sentiments and in his flexible approaches ity in "Earl Warren and the Brown Decision," to changing circumstances. With the notable 33 Journal of Politics 689 (1971). Taking a exception of Alpheus Thomas Mason, schol­ longer view, Dennis J. Hutchinson charts the ars tend to agree with the assessment of Paul rise and fall of unanimity in the segregation A. Freund in "Charles Evans Hughes as Chief cases over the period immediately before and Justice," 81 Harvard lAw Review 4(1967). In after Brown in "Unanimity and Desegregation: this highly favorable account, Freund evalu­ Decisionmaking in the Supreme Court, 1948- ates Hughes as a strong proponent of civil lib­ 1958," 68 Georgetown Law Joumal 1 (1979). erties, no enemy of welfare legislation, and an An examination of the influence of ideas and excellent administrator, who did a superb job of doctrines as well as personality shows that presiding over a fractious Court. Hughes de­ Chief Justice Warren played a significant role, fended the Court in his famous letter to the Hutchinson argues, but momentum for unanim­ Senate Judiciary Committee dming the Court­ ity had begun by the time of the three impor­ packing crisis while at the same time employing tant cases of 1950 (Sweatt v. Painter, 339 U.S. "nice distinctions" to achieve "creative conti­ 629, MclAurin v. Oklahomn State Regents, 339 nuity" (35) as he changed policy direction. The U.S. 637, and Henderson v. United States, 339 crisis Hughes faced is matched only by the chal­ U.S. 816). Mark Tushnet, with Katya Lezin, lenges of the Marshall era, Freund coneludes, refocuses on the Brown case itself in "What BmLIOGRAPIDC ESSAY 161

eluded legislative apportionment (which Warren ranked as most , separation of church and state, privacy, and the treatment of criminal offenders. Members of the Warren Court posed informally in the East Conference room: (left to right) William J. Brennan, Potter Stewart, Byron R. White, Hugo L. Black, Abe Fortas, William O. Douglas, Jobn Marshall Harlan, Chief Justice Earl Warren, and Tom C. Clark.

Really Happened in Brown v. Board of Educa­ view and evaluation of the Warrren Court and tion," 91 Columbia Law Review 1867 (1991). its work by a distinguished group oflegal schol­ On the basis of an exhaustive review of the ars and professionals includes essays on juris­ inner workings of the Court in the drawn-out prudence in major fields, profiles of leading process of deciding Brown, Tushnet revises members of the Court, and a series of evalua­ previous accounts but agrees that Earl Warren tive essays that set the Warren Court in histori­ played a crucial role in reconciling the conflict­ cal and legal perspective. Schwartz's Super ing views of the Justices. The one thing War­ Chief: Earl Warren and His Supreme Court­ ren did not have to do to accomplish this result A Judicial Biography (New York: New York was make major changes in his proposed opin­ University Press, 1983), is a comprehensive re­ ion for the Court, as Bemard Schwartz shows construction of the Court's handling of the im­ in The Unpublished Opinions of the Warren portant cases and events of the Warren years, Court (New York: Oxford University Press, based on a thorough review of the notes and 1985). The draft Brown opinion thus stands in papers of the Justices and extensive interviews marked contrast to those in ten other major cases with Justices and law clerks. Two major collec­ Schwartz presents, which the Warren Court tions of essays appeared in 1968, at the time went on to decide differently, including Bell v. Warren originally intended to retire. One is a Maryland, 378 U.S. 226 (1964), Griswold v. lengthy symposium on the Warren Court in 67 Connecticut, 381 U.S. 479 (1965), and Shapiro Michigan Law Review 219 (1968), which pro­ v. Tlwmpson, 394 U.S. 618 (1969). vides assessments of the Court's work in seven Racial equality was the most prominent of areas of the law and also analyses of the Court's many areas of legal innovation by the Warren role in the political process and its coverage by Court; others included legislative apportion­ the press. The Warren Court: A Critical ment (which Warren ranked as most important), Analysis (New York: Chelsea House, 1969), ed­ freedom of speech and press, separation of ited by Richard H. Sayler, Barry B. Boyer, and church and state, privacy, and the treatment of Robert E. Gooding, Jr., includes essays by criminal offenders. In The Warren Court: A prominent scholars on Warren Court Retrospective (New York: Oxford University decisionmaking in nine areas of the law, plus Press, 1996), Bemard Schwartz has edited a Anthony Lewis's essay on Warren and Philip balanced and thoughtful collection of essays Kurland's piece of designated deviI's advocacy, that is essential for a full understanding of Earl in which he finds the attribution of greatness Warren and his Court. This comprehensive re- to Warren "extravagant and premature" (167). 162 JOURNAL 1998, VOL. I

Kurland's is by no means the only negative unconstitutional war in Vietnam. Archibald Cox view, and Clifford M. Lytle, The Warren Court disagrees in The Warren Court: Constitutional & Its Critics (Tucson: University of Arizona Decision as an Instrument of Reform (Cam­ Press, 1968), classifies and analyzes criticism bridge, MA: Harvard University Press, 1968). of the early Warren Court emanating from a Cox, who believes that the task of constitu­ variety of sources. G. Theodore Mitau's De­ tional adjudication inevitably forces the Court cade of Decision: The Supreme Court and the at times to choose between desirable policy­ Constitutional Revolution 1954-1964 (New making and the logic of the law, examines the York: Charles Scribner's Sons, 1967), discusses Warren Court's handling of that dilemma. path-breaking decisions ofthe Warren Court in Though acknowledging that it risked under­ six areas of law and policy and the issues of ntining the continuity and force of law on which compliance that ensued. Richard Y. Funston its own authority depends, Cox concludes that off the Warren Court's contributions to political and social justice in many fields were worth the risk. In his edited volume The Supreme Court Under Earl Warren (New York: Quadrangle Books, 1972), Leonard W. Levy praises the cru­ sade"for liberty and justice of the Warren Court, "the first liberal activist court in our history" (16), but also questions its methods. Other contributors examine the evolution of the Court under Warren, paint portraits of Warren, Hugo L. Black, and Frankfurter, and evaluate the War­ ren Court, bestowing both high praise and tren­ chant criticism. Mark Tushnet enlarges upon the ideological theme in his edited volume, The poor OOl mcms. Warren Court in Historical and Political Per­ ren Court and the Consltitul·ti(].n spective (Charlottesville: University Press of Pelican Publ. Co., Virginia, 1993). The editor's essay sets the Warren Court in historical context as the Court of the political liberalism that began in with further (and with the New Deal and culminated in the Great Politics, the Consltitultit;ln Society (while noting as well that some of its Court (Chicago: rulings contributed to the unraveling of the 1970). Kurland's dontinant liberal coalition). Essays by other lectures "is to promul­ contributors exantine the Court's work from the gated romance about the Warren Court" (xi). perspective of several of its major and two of He sees that Court acting much like a legisla­ its lesser members. ture and identifies three basic shortcomings of Readers seeking to learn about Warren the that approach: a penchant for announcing man will not find much revelation in his own broad rules rather than simply deciding con­ writings. The Public Papers of Chief Justice crete cases, a failure to recognize the Court's Earl Warren, edited by Henry M. Christman lack of capacity for gathering the information (New York: Simon and Schuster, 1959), contain on which such rules should be based and its selected addresses by Warren while governor lack of machinery for enforcing them, and, most of California and Chief Justice, and selected serious, the Court's tendency to coerce where Supreme Court opinions, through 1958. They it could not persuade. The price of these fail­ are characteristicall y unrevealing, and the same ures was great popular ntistrust of the Court may be said of The Memoirs of Earl Warren and, Kurland concludes with some hyperbole, (Garden City, NY: Doubleday, 1977). This post­ a general disrespect for law which led three humous volume, for which Warren had almost Presidents and five Congresses to pursue an finished a rough first draft when he died, con- BIBLIOGRAPmC ESSAY 163 tains uneven comments on some events and Melville Weston Fuller and William Howard Taft cases, including Brown. Warren's A Republic, feU short; the cases of Roger Brooke Taney If You Can Keep It (New York: Quadrangle and Earl Warren are more contentious. James Books, 1972), is a collection of his thoughts on A. Gazell discusses "Chief Justice Warren's responsible citizenship and liberty. Insight from Neglected Accomplishments in Federal Judi­ some who knew him well may be found in brief cial Administration" at 5 Pepperdine Law Re­ reminiscences collected in "Earl Warren: A Trib­ view 437 (1978) and ranks Warren with Taft, ute," 58 California Law Review 3 (1970), and Hughes, and Warren Burger as a judicial ad­ in remembrances by Justice William J. Brennan, ministrator, but the real debate concerns judi­ Jr., Charles L. Black, Jr., Louis H. Pollak, and cial activism and judicial craftsmanship, and John Hart Ely, collected at 88 Harvard Law evaluation of Warren blends inevitably with Review 1,6,8,11 (1974). Written upon Warren's evaluation of the Warren Court. Attacking from death, the latter pieces emphasize his personal the right, L. Brent Bozell in The Warren Revo­ decency and his stature as a force for public lution (New Rochelle, NY: Arlington House, morality. Four biographies describe Warren's 1966) decries the Warren Court's decrees mov­ career but do not analyze his jurisprudence: ing the solution of various problems out of the John D. Weaver, Warren: The Man, The Court, open political process and reserving them for The Era (Boston: Little, Brown, 1967); Leo the judiciary alone (as if that were possible). Katcher, Earl Warren: A Political Biography Bozell finds the Court asserting a revolution­ (New York: McGraw Hill, 1967); Jack Harrison ary degree of final authority to interpret the Pollack, Earl Warren: The Judge Who Constitution and rejects its imposition of its Changed America (Englewood Cliffs, NJ: views on the country. Alexander M. Bickel ex­ Prentice-Hall, 1979); Ed Cray, Chief Justice: A presses similar concerns in much more reasoned Biography of Earl Warren (New York: Simon form. In Politics and the Warren Court (New and Schuster, 1997). The one major, scholarly York: Harper and Row, 1965), a series of revised biography is G. Edward White's Earl Warren: versions of previously published articles on A Public Life (New York: Oxford University civil rights, reapportionment, and religion in the Press, 1982). White, who clerked for the Chief schools, Bickel's theme is the danger of relying Justice, sets out to replace what he perceives too much on the legal process for social order­ as conventional misunderstandings of the man ing, and not enough on the processes of politi­ with his own interpretations: he was not a con­ cal accommodation. In The Supreme Court servative California politician but a progressive and the Idea of Progress (New Haven, CT: Yale who evolved into a liberal, he did not undergo University Press, 1978), Bickel emphasizes the a metamorphosis of opinion on the Court un­ importance for the judicial function of rational­ der the sway of Justices Black and Douglas, ity, principle, and analytical rigor, and he is dis­ he was a legal craftsman of a distinctive sort turbed by the degree of subjectivity he finds in whose approach combined ethical principles the rulings of the Warren Court. For further and judicial activism, and he was not a bland analysis of this problem, sensitive to Bickel's and ordinary fellow. His greatness, White ac­ concerns but sympathetic to Warren, see John knowledges, rests on the correctness of his prin­ Hart Ely, Democracy and Distrust: A Theory of ciples, not the quality of his jurisprudence. Judicial Review (Cambridge, MA: Harvard Warren, who "embodied attitudes rather than University Press, 1980), especially chapter three, contributing to their intellectual development," "Discovering Fundamental Values," but see also was in White's eyes "nonetheless a great man, Martin Shapiro, Law and Politics in the Su­ not only for what he embodied but also for what preme Court: New Approaches to Political Ju­ he accomplished" (369). risprudence (New York: Free Press of Glencoe, As we have seen in our discussion of the 1964). In "Policy in Search of Law: the Warren other Chief Justices, the assessment of great­ Court from Brown to Miranda, 9 Journal of ness is a theme to which scholars often repair. American Studies 301 (1975), Richard A. The consensus seems to be that John Marshall Maidment admires the Warren Court's policies and Charles Evans Hughes were great and that on segregation, reapportionment, and the rights 164 JOURNAL 1998, VOL. I of criminal suspects, but he finds its opinions and faults the tactic of postponing a remedy. in major cases to be insubstantial, deficient in The Chief Justice's constitutional theories were the elements of traditional legal argument. Un­ "empty"; in terms of intellectual leadership, "it like earlier activist Courts, the Warren Court was 'The Brennan Court'" (926,923). War­ did not reason from history, precedent, and con­ ren was, Hutchinson opines, "a dull man and a stitutional intent; it made policy. The Court dull judge" (930). thus became an unelected legislature, Maidment Other commentators view Warren very dif­ concludes, inimical to the democratic political ferently. In 'The World of Earl Warren," 60 process. Critics of those earlier Courts, of American Bar Association Journal 1228 (1974), course, find them guilty of the same offenses. a brief collection of tributes at the time of his In a skeptical evaluation, "Earl Warren, the 'War­ death, Eugene Gressman praises Warren's "in­ ren Court,' and the Warren Myths," 67 Michi­ nate commitment to decency, fairness, equal­ gan Law Review 353 (1968), Philip B. Kurland ity, integrity, and honesty ... , qualities ... asserts that Warren was "deserving neither of which were exasperatingly maudlin to Warren's the simpering adulation of his admirers nor of more sophisticated critics" (1229). Gressman the vitriolic abuse of his detractors" (353). He finds Warren reflecting "current national needs was certainly not the intellectual leader of the and aspirations" (1230) but acknowledges Jus­ Court; it formed him more than he formed it. It tice John Marshall Harlan's complaint that the was too early to tell whether the modest results role of the Court is not to provide a remedy for of the Warren Court's work (as in desegrega­ every social ill. Judge William S. Thompson tion and the abolition of school prayer) were recounts Warren's efforts on behalf of the move­ on the side of history, Kurland concludes, but ment for world peace through law, and Justice if they were, Warren may be deemed great be­ William O. Douglas ranks Warren with Marshall cause of the place he held. Nine years later in and Hughes as a great Chief Justice. In "Earl "Self Portrait of a Jurist-Without Warts," 87 Warren as Jurist," 67 Virginia Law Review 461 Yale Law Journal 225 (1977), an acid review of (1981), G. Edward White sees in Warren a re­ Warren's memoirs. Kurland suggests he should sult-oriented approach to judging based on ethi­ be ranked with Chief Justices Fred M. Vinson cal conviction, a natural-law approach pur­ and Warren Burger, not Marshall and Hughes. sued-for a change--()n behalf of the non-elite In a "Book Review Essay," 29 American Jour­ (albeit in a posture of skepticism about the nal ofLegal History 349 (1985), Barry Sullivan ability of representative institutions to do finds that Bernard Schwartz (Super Chief) ap­ the right thing). This flies in the face of the parently agrees with his subject that the pro­ norms of judicial whose disciples be­ cesses of legal employed to reach lieve that, in the long run, the integrity of the good results are relatively unimportant, while process of decision is even more important than G. Edward White (A Public Life) is properly the result. Warren's approach produced no troubled by that approach. "The problem," consistent, well-crafted body of constitu­ says Sullivan, "is that Warren's personal no­ tional doctrine, White concedes, so it produced tions of fairness and decency have no greater admirable results but left hanging the question claim to constitutional authority than 'Mr. of how we would view him if he had not cor­ Herbert Spencer's Social Statics.'" (353; the ref­ rectly identified the values Americans consider erence is to Justice Oliver Wendell Holmes' re­ to be right. The short answer, I think, is that we jection of ideology as a basis for constitutional would view him the way we view Taft. The interpretation in his dissent in Lochner v. New more important point, insist other observers, is York. White, however, is ultimately positive that Warren did identify and pursue the correct about Warren. Reviewing the same two books, values. His colleague, Justice Abe Fortas, in Dennis J. Hutchinson, "Hail to the Chief: Earl "Chief Justice Warren: The Enigma of Leader­ Warren and the Supreme Court," 81 Michigan ship," 84 Yale Law Journal 405 (1975), credits Law Review 922 (1983), is no great admirer Warren with leadership of the "profound moral, of either work or of their subject. He downplays ethical and constitutional revolution" (411) Warren's role in achieving unanimity in Brown wrought by his Court, which was the product BmLIOGRAPIllC ESSAY 165 of his personality, courage, sense of fairness, Sylvia Snowiss argues that that is precisely how and dignity, and of the tone which he set for the Framers conceived of judicial review: as an the work of the Court. Warren ranks with unconunon political act, enforcing the funda­ Marshall and Hughes in leadership, Fortas con­ mental values of a social contract Great con­ cludes. In "Understanding the Warren Court: stitutional decisions command consensus by Judicial Self-Restraint and Judicial Duty," 81 accurately perceiving the common will, Political Science Quarterly 523 (1966), Archibald Cox argues in "Chief Justice Earl Alpheus Thomas Mason sets the work of the Warren," 83 Harvard Law Review 1 (1969), Warren Court in the context of a wide-ranging and, popular and professional criticism to the survey of American constitutional history. The contrary notwithstanding, Warren's greatness two basic issues that divided the Court were lay in leading a Court that achieved that. "[T]he the choice of reliance on the Bill of Rights or on decisions of the Warren Court brought the law federalism and separation of powers as the pri­ more nearly into accord with the best and tru­ mary safeguards of freedom, and the question est aspirations of the American people" (3). of whether economic dogma has any greater That is ajudgment Earl Warren would be proud claim to judicial support than political ideol­ to accept. ogy. While some of its members lamented a want of self-restraint, the Warren Court did its The author would like to express special duty, Mason contends, enhanacing the quality thanks for the generous assistance of Jeff of American democracy and employingjudiciaJ Chaffin. Director of Reader Services at the review for its intended purpose of eliminating Clifton M. Miller Library of Washington Col­ the occasion for revolution. As we have seen, lege. 166

Contributors

Barry Cushman is AssociateProfessor of Law Robert C. Post is the Alexander F. & May T. at Saint Louis University but will be moving to Morrison Professor of Law at the University University of Virginia Law School next fall. of California at Berkeley.

James W. Ely, Jr., is Professor of Law and The late Bernard Schwartz was the Chapman History at Vanderbilt University. Distinguished Professor of Law at the Univer­ sity of Tulsa Law School when he wrote this Herbert A. Johnson is Hollings Professor of article. He had served on the law faculty at Law at the University of Southern California. New York University Law School for forty five years before retiring in 1992 as Edwin D. Webb James B. O'Hara is Special Assistant for Ex­ Professor of Law. ecutive Programs at the Sellinger School of Business and Management at Loyola College John B. Taylor is Professor and Chair of Politi­ in Maryland. cal Science at Washington College. 167 Photo Credits

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Cover: Librruy of Congress, LC-USZ62-I 7681 ACKNOWLEDGEMENT

The Officers and Trustees ofthe Supreme Court Historical Society would like to thank the Charles Evans Hughes Foundation for its generous support of the publication of this Journal.